                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-2904
UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,
                               v.

EARKLE J. TYLER,
                                         Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
     for the Northern District of Indiana, Hammond Division.
             No. 05 CR 140—James T. Moody, Judge.
                        ____________
 ARGUED FEBRUARY 27, 2007—DECIDED JANUARY 10, 2008
                   ____________


 Before WOOD, EVANS, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. Earkle Tyler was charged with
possessing crack with intent to distribute in violation of
21 U.S.C. § 841(a)(1). Tyler moved to suppress the crack,
arguing that it was discovered only after police officers
detained and searched him without reasonable suspicion.
The district court denied this motion, and Tyler entered
a conditional guilty plea. He now challenges the denial of
his motion to suppress. Because the officers detained
Tyler without reasonable suspicion that criminal activity
may be afoot, the suppression motion should have been
granted. We vacate Tyler’s conviction and remand with
instructions.
2                                              No. 06-2904

                     I. Background
  Officers Adam Clark and James Onohan of the
Hammond, Indiana police department testified at Tyler’s
suppression hearing and gave the following account of
their encounter with him. At around 4:30 p.m. on Satur-
day, September 17, 2005, they were patrolling together
in their squad car through a residential neighborhood in
Hammond. They noticed a man, later identified as 29-year-
old Earkle Tyler, walking near the intersection of Merrill
and Rhode Streets with an open beer bottle in his hand.
(Tyler lived at 830 Merrill Street, which is located about
eight doors away from that intersection.) It looked to the
officers as though there was “maybe one drink left” in the
bottle. Onohan immediately told Clark, “[W]e need to
stop this guy because he’s got a beer bottle in his hand.”
Clark testified that he and Onohan were then under the
mistaken impression that it is illegal to have an open
alcoholic beverage on the streets of Hammond, so they
pulled over “to confront Tyler about the beer bottle.”
Neither officer knew Tyler, and both conceded that other
than seeing him carrying the open beer bottle, they had
no reason to stop or question him.
  The officers got out of the squad car and approached
Tyler. Clark informed Tyler he was violating the law and
asked “why he was being so nonchalant about walking
on the street with a beer bottle.” Tyler answered that he
had just picked up the bottle and was going to go throw
it in the trash. Clark testified that Tyler acknowledged
he had been drinking earlier in the day and smelled of
alcohol, but both officers concluded he was not intoxicated.
  The officers then asked Tyler for identification in order
to check for outstanding warrants. Tyler provided it, and
the officers contacted their dispatcher to run a warrant
check. As the officers waited for the warrant check, Tyler
asked several times whether he could throw the beer
No. 06-2904                                               3

bottle away in the nearest trash can, about 50 feet away.
The officers told him to “hang tight” until the warrant
check was done. It took about two minutes for the dis-
patcher to report back that Tyler had no active warrants.
Up to this point, Clark testified, Tyler was “very coopera-
tive.” Once the warrant check was completed, Clark
handed Tyler’s identification back to him and told him
he was free to go.
   As Tyler was putting his identification back in his
pocket, however, Clark noticed a “bulge” either under
Tyler’s waistband or in his front pocket. Clark testified
he had “no clue” what might have been causing the
bulge, but he asked Tyler what it was. The officer testified
that the bulge “could have been a gun[ ] [or] a knife,” and
after he asked Tyler what it was, it became “obvious” that
it was “something that he didn’t want us to know about.”
Tyler’s reaction made it appear to the officers that “some-
thing was wrong.” Tyler took a step back and raised the
beer bottle to shoulder height. Clark interpreted this
action as “a possible threat.” Clark and Onohan both
grabbed the hand that was holding the beer bottle, and
Tyler then dropped the bottle. Clark also grabbed at the
bulge in Tyler’s pants and a struggle ensued. A purple
Crown Royal bag was dislodged “within the course of the
struggle,” although Clark conceded it was “possible” he put
his hand inside Tyler’s clothing to get at the bulge. The
officers’ written report, entered as an exhibit at the
suppression hearing, contains this description of Clark’s
recovery of the bag: “Officer Clark observed a bulge in
Mr. Tyler’s left front pocket and questioned Mr. Tyler of
what it was. Mr. Tyler immediately stepped back and
Officer Clark was able to grab a purple Crown Royal sack
out of his left front pocket.” The report does not state
that Tyler raised his arm with the beer bottle. Nor does
it indicate that Tyler was told he could leave before
Clark first inquired about the bulge.
4                                             No. 06-2904

  During the struggle, Tyler tried to snatch the bag back
but was tackled, handcuffed, and placed in a squad car.
Another officer who had arrived at the scene in response
to Onohan’s call for backup picked up the Crown Royal
bag and opened it. The bag contained about 30.3 grams
of crack and 24 grams of powder cocaine.
  Tyler initially was booked on a state drug charge. He
also received a citation for having an “open alcoholic
beverage,” ostensibly in violation of Hammond City Code
§ 99.16 (the current version is found at Hammond City
Code § 99.26). The police report, as well as an affidavit
prepared by a Drug Enforcement Agency task force officer
and filed with the federal criminal complaint, both memo-
rialize that the officers stopped Tyler because they ob-
served him with an open alcohol container and told
him “that it was against the law to walk down the street
with an open alcohol container.” But a few days after
Clark and Onohan issued the citation, their supervisor
informed them that it was not illegal to have an open
alcohol container on the streets of Hammond. The
Hammond City Code (then § 99.16, currently § 99.26)
prohibits possession of open alcoholic beverages only “in
any park or park street,” with exception made for certain
community events and properly permitted organizations.
  At the suppression hearing, Clark acknowledged he
and Onohan made a mistake about the open intoxicant
law but testified that the main purpose for stopping
Tyler was to see if he was publicly intoxicated, which is
a violation of Indiana law. See IND. CODE § 7.1-5-1-3. The
only basis for this suspicion, according to the officers’
testimony, was the open beer bottle. The district court
found both officers credible and held that Tyler’s presence
on a public sidewalk at 4:30 p.m. carrying an almost-
empty beer bottle gave the officers reasonable suspicion
that he may be publicly intoxicated. Thus, the court
concluded, the officers had adequate justification for an
No. 06-2904                                               5

investigative detention under Terry v. Ohio, 392 U.S. 1
(1968). After the district court denied the suppression
motion, Tyler entered a conditional guilty plea and was
sentenced to the statutory mandatory minimum sen-
tence of 120 months’ imprisonment. See 21 U.S.C.
§ 841(b)(1)(B).


                     II. Discussion
  We review the district court’s denial of Tyler’s sup-
pression motion according to a split standard of review.
Historical facts are reviewed for clear error, and “due
weight” deference is given “to [the] inferences drawn
from those facts by resident judges and local law en-
forcement officers.” Ornelas v. United States, 517 U.S. 690,
699 (1996); United States v. Sholola, 124 F.3d 803, 821
(7th Cir. 1997). Fourth Amendment determinations
regarding the existence of a seizure and reasonable
suspicion are reviewed de novo. Ornelas, 517 U.S. at 697;
United States v. Scheets, 188 F.3d 829, 835-36 (7th Cir.
1999); Sholola, 124 F.3d at 814-15.
  Here, as in the district court, the focus of Tyler’s argu-
ment is that he was detained without reasonable suspi-
cion. The government, however, argues for the first time
on appeal that Clark and Onahan did not detain Tyler
at all. In the district court, the government argued that
the officers conducted a Terry stop justified by reason-
able suspicion that Tyler was publicly intoxicated, and
the district court accepted this argument. The govern-
ment now characterizes the encounter as consensual
police-citizen questioning, which does not implicate the
Fourth Amendment and need not be supported by reason-
able suspicion. United States v. Drayton, 536 U.S. 194,
200-01 (2002) (“Law enforcement officers do not violate
the Fourth Amendment’s prohibition of unreasonable
seizures merely by approaching individuals on the
6                                               No. 06-2904

street or in other public places and putting questions to
them if they are willing to listen.”); United States v.
Burton, 441 F.3d 509, 511 (7th Cir. 2006) (“Even though
approaching a person on the street (or at work, or on a
bus) to ask him a question causes him to stop for at
least the time needed to hear the question and answer
(or refuse to answer), the curtailment of the bystander’s
mobility, privacy, and peace of mind is so slight that
neither probable cause nor reasonable suspicion is re-
quired to justify the police action.”) (citation and internal
quotation omitted); United States v. Adamson, 441 F.3d
513, 519-20 (7th Cir. 2006) (“It is well settled that police
may approach an individual in a public place and seek
the individual’s cooperation in answering a few questions.
Such an encounter is not a ‘seizure’ within the meaning
of the Fourth Amendment.”); United States v. Childs,
277 F.3d 947, 950 (en banc) (7th Cir. 2002) (“[T]he Su-
preme Court has held repeatedly that police may ap-
proach persons and ask questions or seek their permis-
sion to search, provided that the officers do not imply
that answers or consent are obligatory.”).
  “ ‘[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) (opinion of Stewart, J.)); United States v.
McCarthur, 6 F.3d 1270, 1275 (7th Cir. 1993). Determining
whether a seizure has occurred is a highly fact-bound
inquiry, but the following are relevant factors: whether the
encounter took place in a public place or whether police
removed the person to another location; whether the police
told the person he was not under arrest and was free to
leave; whether the police informed the person that he was
suspected of a crime or the target of an investigation;
No. 06-2904                                                7

whether the person was deprived of identification or
other documents without which he could not leave (such
as a driver’s license or train or airline ticket); and
whether there was any limitation of the person’s move-
ment such as physical touching, display of a weapon, or
other coercive conduct on the part of the police that
indicates cooperation is required. McCarthur, 6 F.3d
at 1275-76.
  Here, the district court found the officers credible
and accepted their version of events; at least as to the
seizure inquiry (in contrast to the reasonable suspicion
inquiry), the parties do not dispute the historical facts.
Applying independent review and considering the facts
in their totality, we conclude that a reasonable person in
Tyler’s circumstances would not have believed he was
free to leave. Although the encounter took place on a
public street and the officers did not draw their weapons
or (at least initially) lay hands on Tyler, they told him
he was violating the law, took his identification from
him and retained it while they ran a warrant check,
and told him he could not leave until the warrant check
was completed.
  We find this case analogous to a line of cases in this
circuit involving airport and train station stops by narcot-
ics officers. See McCarthur, 6 F.3d at 1276-77; United
States v. Soto-Lopez, 995 F.2d 694, 698 (7th Cir. 1993);
United States v. Williams, 945 F.2d 192, 197 (7th Cir.
1991); United States v. Sterling, 909 F.2d 1078, 1083 (7th
Cir. 1990); United States v. Palen, 793 F.2d 853, 857 (7th
Cir. 1986); United States v. Borys, 766 F.2d 304, 311 (7th
Cir. 1985); United States v. Cordell, 723 F.2d 1283, 1285
(7th Cir. 1983). In each of these cases, narcotics officers
stopped travelers at airports or train stations on some
but generally insufficient suspicion to justify a Terry stop.
In each case we characterized the initial encounter as
8                                              No. 06-2904

consensual questioning and moved on to the question of
whether the consensual encounter ripened into an in-
vestigative detention requiring reasonable suspicion
under Terry. Where the officers told the defendant he
was under investigation for carrying drugs or retained
possession of his identification, travel documents, and/or
luggage, we held there was a seizure. See McCarthur,
6 F.3d at 1276; Sterling, 909 F.2d at 1083; Palen, 793
F.2d at 857; Borys, 766 F.2d at 311; Cordell, 723 F.2d at
1285. Where the officers only generally identified them-
selves as narcotics investigators and immediately re-
turned the defendant’s identification and travel docu-
ments, we held the initial consensual encounter did not
ripen into a seizure. See Soto-Lopez, 995 F.2d at 698;
Williams, 945 F.2d at 197.
  In this case, the officers told Tyler—mistakenly, as it
turns out—that he was violating the law by carrying
an open container of alcohol in public. A reasonable per-
son would not feel free to walk away after being con-
fronted by two police 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.
  So we have a seizure, and our next question is wheth-
er reasonable suspicion justified it. See Terry, 392 U.S.
at 22-23. As we have noted, the district court held that
the stop was justified by reasonable suspicion that Tyler
was publicly intoxicated. Tyler’s challenge to this conclu-
sion is two-fold. He argues: (1) he was stopped solely
because the officers mistakenly believed he was violat-
ing an open-container ordinance and the officers’ contrary
testimony at the suppression hearing is false; and
(2) even if the officers did stop him on suspicion of public
intoxication, their suspicion was unreasonable.
No. 06-2904                                               9

  As to the first argument, we have held that a mistake
of law (as opposed to a mistake of fact) cannot justify an
investigative detention. United States v. McDonald, 453
F.3d 958, 962 (7th Cir. 2006). Here, the officers’ mistake
was one of law. They thought the Hammond City Code
prohibited carrying open alcoholic beverages in public; it
did not. However, we cannot accept Tyler’s subsidiary
argument that the officers’ alternative explanation for
stopping him was false. The district court credited the
officers’ testimony; we will not overturn the court’s credi-
bility finding unless Tyler establishes that the court
credited testimony that is “impossible under the laws
of nature.” United States v. Ortiz, 431 F.3d 1035, 1039
(7th Cir. 2005). Tyler has not met this very high burden.
  We come, then, to the question of the district court’s
reasonable suspicion ruling, which we review independ-
ently. Reasonable suspicion “is less than probable cause
but more than a hunch,” United States v. Lawshea, 461
F.3d 857, 859 (7th Cir. 2006), and “articulable facts” must
support the officer’s belief “that criminal activity is
afoot,” Adamson, 441 F.3d at 520. The test is an objective
one based on the totality of the circumstances. United
States v. Arvizu, 534 U.S. 266, 273 (2002). Here, the
officers were unable to articulate a single fact—other
than the open beer bottle—that would support a reason-
able suspicion that Tyler was intoxicated. On appeal
the government does little more than declare that the
officers reasonably suspected that Tyler “might be cur-
rently intoxicated and a potential threat to the safety
of others.” But when the officers observed Tyler from
their car, he was not stumbling, staggering, weaving, or
otherwise unsteady on his feet. He was not incoherent
when they approached; his speech was not slurred and
his eyes were not bloodshot. In short, Tyler exhibited
none of the usual signs of intoxication commonly cited by
law enforcement officers. Indeed, the officers candidly
10                                             No. 06-2904

admitted that the open beer bottle was the sole basis
for their suspicion that Tyler was intoxicated.
  That Tyler was walking down the street on a Saturday
afternoon in September lawfully carrying an open beer
supports only a suspicion that he was drinking, not that
he was drunk. Cf. United States v. Lenoir, 318 F.3d 725,
729-30 (7th Cir. 2003) (officer reasonably suspected
individual was violating Indiana’s public intoxication
statute after observing suspect’s irregular gait); Hirsch v.
Burke, 40 F.3d 900, 903 (7th Cir. 1994) (officer had
probable cause to arrest individual for violating Indiana’s
public intoxication statute when suspect “had trouble
balancing himself and appeared incoherent,” “smelled of
alcohol and had bloodshot eyes,” and “was unable to
state his name or date of birth”). If carrying an open
bottle of beer in public is enough to create a reasonable
suspicion of intoxication, then the police may detain
and investigate any person who drinks beer in public.
That, essentially, is the government’s contention, but that
is not the point of Indiana’s public intoxication statute.
“The spirit of the public intoxication statute is to prevent
people from becoming inebriated and then bothering
and/or threatening the safety of other people in public
places.” Wright v. State, 772 N.E.2d 449, 456 (Ind. Ct. App.
2002).
  The absence of reasonable suspicion to justify the offi-
cers’ initial Terry stop decides this case; everything that
followed was fruit of the poisonous tree. See, e.g., United
States v. Jerez, 108 F.3d 684, 694-95 (7th Cir. 1997); see
also Wong Sun v. United States, 371 U.S. 471, 488 (1963).
Accordingly, we vacate Tyler’s conviction and remand
with instructions to grant his motion to suppress.
                                 VACATED and REMANDED.
No. 06-2904                                        11

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—1-10-08
