In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 23-2258
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY BAILEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin
No. 22-cr-00068 — William M. Conley, Judge.
____________________
ARGUED APRIL 18, 2024 — DECIDED DECEMBER 2, 2024
____________________
Before SYKES, Chief Judge, and BRENNAN and SCUDDER, Cir-
cuit Judges.
SYKES, Chief Judge. Late one February night, police officers
in Fitchburg, Wisconsin, were dispatched to the scene of a
large house party to investigate a noise complaint. Sergeant
Dan Varriale was the first to arrive. He parked down the block
and approached the house on foot. As he did so, he saw two
people in front of the house pushing and shoving each other.
2 No. 23-2258
He sprinted toward them and saw that it was a man and a
woman who were fighting.
The scuffle continued, and Sergeant Varriale eventually
separated the two with assistance from other officers. The ser-
geant then handcuffed the man, identified as Anthony Bailey,
and began walking with him back to his squad car. As they
reached the squad, the sergeant asked Bailey if he was carry-
ing any weapons. After a brief pause, Bailey admitted that he
had a gun hidden in his pants. Sergeant Varriale confiscated
the gun—a .40 caliber Glock—and Bailey was charged with
unlawfully possessing a firearm as a felon. See 18 U.S.C.
§ 922(g)(1).
Bailey moved to suppress the gun, arguing that his arrest
was not supported by probable cause. After an evidentiary
hearing, a magistrate judge found Sergeant Varriale’s testi-
mony credible and concluded that he had probable cause to
arrest Bailey under Wisconsin’s disorderly conduct statute.
The district judge adopted the magistrate judge’s findings
and conclusions and denied the suppression motion. Bailey
entered a conditional guilty plea, reserving the right to chal-
lenge that decision.
On appeal Bailey asks us to set aside the magistrate
judge’s decision to credit Sergeant Varriale’s testimony about
the fight. That’s an uphill battle. Credibility determinations
receive special deference and are rarely overturned. Bailey in-
sists that Sergeant Varriale’s body-camera video contradicts
his testimony. Not so. We affirm the judgment.
I. Background
Around midnight on February 6, 2022, neighbors com-
plained to police about a boisterous house party at 5221 Day
No. 23-2258 3
Lily Place, located in a quiet residential neighborhood in
Fitchburg. Callers complained about the noise and said the
partygoers were consuming alcohol and marijuana. Sergeant
Varriale, who was familiar with the house from previous
noise-disturbance complaints, responded to the scene. He
parked his squad car about a half block from the house and
began walking down the street with his body camera acti-
vated. As he got closer, he heard loud shouting and saw two
people “tussling” outside near the sidewalk. They were push-
ing and grabbing at each other. As the sergeant picked up his
pace, he saw one of them fall into the snow and get up again.
The skirmish continued. The sergeant radioed for backup, re-
ported that a fight was in progress, and sprinted towards the
fracas.
As he closed in on the pair, Sergeant Varriale noticed that
the fight was between a man and a woman, and he saw the
woman hit the man in the head. He ordered them to “knock
it off” and get on the ground. Although they stopped fighting,
neither complied with his order to get on the ground. Con-
cerned that the ruckus might reignite, the sergeant tried to get
between the two and handcuff the man. The woman stepped
between them and continued shouting. Backup arrived, and
other officers intervened to subdue the woman while Ser-
geant Varriale handcuffed the man.
The combatants were identified as Anthony Bailey and
Tiffany Smith. After handcuffing Bailey, Sergeant Varriale
walked with him back to his squad car. As they approached
the squad, the sergeant asked Bailey “do you have any weap-
ons on you or anything like that … no guns or knives?” Bailey
did not respond. Sergeant Varriale asked again, and at first
Bailey said “no,” but after a few more steps toward the squad,
4 No. 23-2258
he said “I got a gun in my drawers.” Bailey pointed to the lo-
cation of the gun. At Sergeant Varriale’s direction, he unbut-
toned his pants so the officer could confiscate the firearm.
Sergeant Varriale recovered a .40 caliber Glock handgun.
Because Bailey has several felony convictions, he is pro-
hibited from possessing firearms. A grand jury returned a
one-count indictment charging him with possessing a firearm
as a felon in violation of § 922(g)(1). He moved to suppress
the firearm, claiming that Sergeant Varriale lacked probable
cause to arrest him. He maintained that he wasn’t shouting or
fighting; that it was Smith who hit him (not vice versa); and
that they stopped arguing when the sergeant told them to
knock it off.
A magistrate judge held an evidentiary hearing on the mo-
tion. The government called Sergeant Varriale as a witness
and also introduced his body-camera video. The sergeant tes-
tified to the facts as we’ve just described them. The body-cam
video does not show the fight itself because Sergeant Varriale
was too far away to bring Bailey and Smith into the camera’s
lens. But the recording captured Sergeant Varriale sprinting
toward the scene just moments after he began walking up the
street. As he ran, the recording reflects that he notified other
officers over his radio that a fight was in progress. Smith and
Bailey come into view as the sergeant arrived at their location.
The recording continues from there, capturing what hap-
pened next.
The magistrate judge found Sergeant Varriale’s testimony
credible and noted that the video evidence generally corrob-
orated his account. He also concluded that the fight in the
street between Bailey and Smith established probable cause to
arrest Bailey under Wisconsin’s disorderly conduct statute,
No. 23-2258 5
which criminalizes a broad range of conduct that tends to
cause a disturbance. See WIS. STAT. § 947.01(1) (2022). The
magistrate judge recommended that the district judge deny
the suppression motion.
Bailey objected, challenging the magistrate judge’s deci-
sion to credit Sergeant Varriale’s testimony. He claimed that
the body-camera footage contradicted the sergeant’s account.
More specifically, he noted that the body-cam recording does
not show snow or a wet spot on either Smith’s or Bailey’s
clothing even though Sergeant Varriale testified that one of
them fell into the snow during the fight. The magistrate judge
rejected this argument, finding it unremarkable that the video
did not show snow or wetness on Smith’s or Bailey’s cloth-
ing—or at least that the ambiguity was not significant enough
to undermine Sergeant Varriale’s credibility. The district
judge agreed and adopted the magistrate judge’s findings and
conclusions. And because the evidence established probable
cause to arrest Bailey for disorderly conduct, the judge denied
the suppression motion.
Bailey entered a conditional guilty plea, reserving his right
to appeal the denial of his motion to suppress the gun. This
appeal followed.
II. Discussion
“We review a district court’s denial of a motion to sup-
press under a dual standard, assessing conclusions of law de
novo and evaluating factual findings for clear error with spe-
cial deference granted to the court’s credibility determina-
tions.” United States v. Outland, 993 F.3d 1017, 1021 (7th Cir.
2021). Applying this deferential standard of review for credi-
bility determinations, “we accept the district court’s findings
6 No. 23-2258
as true, unless the facts, as testified to by the police officers,
are so unbelievable that no reasonable factfinder could credit
them.” United States v. Avila,
106 F.4th 684, 694 (7th Cir. 2024).
“This deference is equally applicable where credibility deter-
minations have been made by a magistrate judge and the re-
port and recommendation of the magistrate judge have been
adopted by the district court.” United States v. Gillaum,
372
F.3d 848, 854 (7th Cir. 2004).
Recognizing the deferential standard of review, Bailey
rests his argument on the body-cam video, as he did in the
district court. He invokes the Supreme Court’s decision in
Scott v. Harris, 550 U.S. 372 (2007). Scott involved a suit for
damages under
42 U.S.C. § 1983 by a fleeing suspect who was
injured in a high-speed police chase; the injured suspect sued
the pursuing officers alleging that their conduct during the
chase amounted to excessive force in violation of the Fourth
Amendment.
Id. at 375–76. Based on the plaintiff’s version of
events, the court of appeals affirmed the district court’s deci-
sion that material factual disputes precluded summary judg-
ment.
Id. at 376. But the chase was captured on video, and the
Court said the recording so “clearly contradict[ed]” and “ut-
terly discredit[ed]” the plaintiff’s story that the court of ap-
peals “should not have relied on such visible fiction; it should
have viewed the facts in the light depicted in the videotape.”
Id. at 378, 380–81.
Scott does not help Bailey. Far from contradicting Sergeant
Varriale’s testimony, the body-cam video corroborates it. The
video shows Sergeant Varriale breaking into a sprint soon af-
ter stepping out of his squad car. As he ran towards the scene
of the altercation, he is heard reporting over his radio that a
fight was in progress, and there are sounds of shouting in the
No. 23-2258 7
background. After the arrest, as Sergeant Varriale walked Bai-
ley to the squad car, he told him that he saw him physically
fighting with Smith.
Ignoring all this, Bailey insists that we should disregard
Sergeant Varriale’s testimony because the video shows no
snow or wet spot on either his or Smith’s clothing. This, he
claims, undercuts Sergeant Varriale’s testimony that he saw
one of them fall into the snow while he ran towards the fight.
This argument is meritless. The encounter took place in the
middle of the night, in a dark and not well-lit street, and the
recording is low quality and grainy. It does not show Smith
or Bailey from all angles. Because Smith wore white shoes and
white pants, it would be hard to spot white snow on her cloth-
ing under even better conditions. And for all we know, either
one of them could have had snow or wetness on a part of their
clothing that cannot be seen on the video. See United States v.
Yang, 39 F.4th 893, 900 (7th Cir. 2022) (rejecting the defend-
ant’s argument that dashcam video of a traffic stop defeated
the officer’s testimony that a traffic violation occurred be-
cause the video was poor quality and did not clearly depict
the events). Moreover, and as the magistrate judge sensibly
concluded, the absence of video evidence showing snowy
clothing is not so significant that it calls into question the cred-
ibility of Sergeant Varriale’s testimony.
In short, there is no basis to disturb the magistrate judge’s
decision to credit Sergeant Varriale’s testimony. That makes
the probable-cause analysis simple. “Probable cause exists ...
when an objectively reasonable officer—with the same infor-
mation known by the arresting officer—would believe there
is a probability or substantial chance of criminal activity.”
United States v. Alexander, 78 F.4th 346, 348 (7th Cir. 2023). The
8 No. 23-2258
Wisconsin disorderly conduct statute makes it a crime to “en-
gage[] in violent, abusive, indecent, profane, boisterous, un-
reasonably loud or otherwise disorderly conduct under
circumstances in which the conduct tends to cause or provoke
a disturbance.” § 947.01(1). This broad statute “captures ‘any
type of conduct that is disorderly.’” Pierner-Lytge v. Hobbs,
60
F.4th 1039, 1043 (7th Cir. 2023) (quoting Doubek v. Kaul,
973
N.W.2d 756, 760 (Wis. 2022)). An officer who observes a per-
son physically fighting with another in the street, as Sergeant
Varriale did, has probable cause to make an arrest under this
statute.1
AFFIRMED
1 In a new argument on appeal, Bailey suggests that his conduct wasn’t
prosecutable under Wisconsin’s disorderly-conduct statute because the
video evidence does not show that he was unreasonably loud. He styles
this as a First Amendment argument. However styled, the argument is
frivolous. Bailey wasn’t arrested because he was loud. He was arrested
because he and Smith were engaged in a physical fight.