United States v. Phillips

• Citation: 834 F.3d 1176
• Decision Date: 23 August 2016
• Docket Number: No. 14–14660,14–14660
• Parties: United States of America, Plaintiff–Appellee, v. Ted Phillips, a.k.a. Duck, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

834 F.3d 1176

United States of America, Plaintiff–Appellee,

v.Ted Phillips, a.k.a. Duck, Defendant–Appellant.

No. 14–14660

United States Court of Appeals, Eleventh Circuit.

Date Filed: August 23, 2016

Francisco Raul Maderal, Jr., Wifredo A. Ferrer, Kathleen Mary Salyer, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.

Manuel Arteaga–Gomez, Christine Carr O'Connor, Michael Caruso, Federal Public

Defender, Federal Public Defender's Office, Miami, FL, for Defendant–Appellant.

Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and STORY,^* District Judge.

WILLIAM PRYOR, Circuit Judge:

This appeal presents a question of first impression about the Fourth Amendment: Can the police arrest someone based solely on a civil writ of bodily attachment for unpaid child support? Ted Phillips appeals his conviction of being a felon in possession of a firearm and an armed career criminal, 18 U.S.C. §§ 922(g)(1), 924(e)(1). A police officer discovered Phillips's firearm while arresting him on a writ of bodily attachment, Fla. Fam. L.R.P. 12.615. Phillips argues that the firearm should have been suppressed, but we disagree. Writs of bodily attachment are “Warrants” within the meaning of the Fourth Amendment, U.S. Const. Amend. IV, so the officer found the firearm during a valid search incident to arrest. Phillips also argues for the first time on appeal that he does not qualify for the 15-year mandatory minimum under the Armed Career Criminal Act, but his arguments are both waived and foreclosed by precedent. We affirm.

I. BACKGROUND

In early 2014, Phillips was a wanted man. Police sought to question him about a recent shooting in Miami and to arrest him for failing to pay child support. In February, a Florida court issued a writ of bodily attachment for unpaid child support that “ordered” the police to “take [Phillips] into custody ... and confine him[ ] in the county jail.” But the writ allowed Phillips to “purge this contempt and be immediately released from custody at any time by the payment of the sum of $300.00.” Two days later, the Miami-Dade Police Department issued a “Wanted for Questioning” flyer, which included Phillips's name and picture and mentioned the recent shooting and the writ of bodily attachment. The flyer instructed the police to detain Phillips on sight.

On March 1, Officer Nelson Rodriguez spotted Phillips on the same street corner where the shooting had occurred. Officer Rodriguez knew about the flyer and the writ of bodily attachment. As Officer Rodriguez approached Phillips to arrest him, Phillips reached down toward his waistband. Fearing the worst, Officer Rodriguez grabbed Phillips's right hand and felt a metal bulge in his waistband. Officer Rodriguez removed the bulge, which was a loaded .380 caliber firearm. Phillips, a convicted drug dealer, was not allowed to have a firearm. A federal grand jury indicted Phillips on one count of being a felon in possession of a firearm and an armed career criminal, 18 U.S.C. §§ 922(g)(1), 924(e)(1).

Phillips moved to suppress the firearm, but the district court denied his motion. The district court concluded that a civil writ of bodily attachment is “no different” from a criminal arrest warrant for purposes of the Fourth Amendment. The district court ruled that Officer Rodriguez could arrest Phillips based on the writ and recover the firearm as part of a search incident to arrest.

After the district court denied his motion to suppress, Phillips conditionally pleaded guilty. The plea agreement stated that Phillips “understands and acknowledges that the Court ... must impose a term of imprisonment of no less than the statutory minimum of 15 years.” But Phillips reserved his right to appeal the denial of his motion to suppress.

The probation office prepared a presentence investigation report, which recommended that Phillips be sentenced to 15 years of imprisonment. When a felon with three or more prior convictions for a “serious drug offense” is convicted of possessing a firearm, the Armed Career Criminal Act imposes a mandatory minimum sentence of 15 years. Id. § 924(e). The presentence investigation report concluded that Phillips was an armed career criminal under the Act because he had eight prior convictions for possessing cocaine with the intent to sell, Fla. Stat. § 893.13(1)(a). Phillips did not file any objections to the presentence investigation report.

At the sentencing hearing, the district court confirmed that Phillips had not objected to the presentence investigation report. His lawyer responded, “That is correct, your Honor.” His lawyer then told the district court, “We request a sentence at 15 years, which is the minimum mandatory sentence.” “[A] 15-year sentence is adequate to achieve all of the sentencing goals,” his lawyer argued, “and we ask that the Court impose that sentence of 15 years.” The district court agreed and sentenced Phillips to 15 years of imprisonment. After announcing his sentence, the district court asked Phillips whether he had any objections. His lawyer responded, “No, your Honor,” except that Phillips planned to appeal the denial of his motion to suppress.

II. STANDARDS OF REVIEW

When the facts are undisputed, we review the legality of a search and the legality of a sentence de novo . See United States v. Prevo , 435 F.3d 1343, 1345 (11th Cir. 2006) ; United States v. White , 980 F.2d 1400, 1401 (11th Cir. 1993).

III. DISCUSSION

Phillips raises two arguments on appeal. He argues that the district court should have granted his motion to suppress the firearm and that the district court should not have sentenced him as an armed career criminal. We address each argument in turn.

A. The District Court Correctly Denied the Motion to Suppress.

Phillips argues that Officer Rodriguez had no authority to conduct a search incident to arrest because he had no authority to arrest Phillips in the first place. Phillips contends that a civil writ of bodily attachment is not equivalent to a criminal arrest warrant for purposes of the Fourth Amendment. We disagree.

The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. The amendment contains two main parts: the Reasonableness Clause, which prohibits unreasonable searches and seizures, and the Warrants Clause, which requires warrants to meet certain requirements. An arrest is a “seizure” of a “person,” so it must comply with the Reasonableness Clause. Ashcroft v. al-Kidd , 563 U.S. 731, 735–36, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011).

To determine whether an arrest is reasonable, “we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve.”

Virginia v. Moore , 553 U.S. 164, 168, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008). If history does not provide a conclusive answer, we apply the “traditional standards of reasonableness ‘by assessing, on the one hand, the degree to which [the arrest] intrudes upon an individual's privacy and, on the other, the degree to which [the arrest] is needed for the promotion of legitimate governmental interests.’ ” Id. at 171, 128 S.Ct. 1598 (quoting Wyoming v. Houghton , 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) ).

History resolves this appeal. The parties agree that the key question is whether a writ of bodily attachment for unpaid child support is a warrant within the meaning of the Fourth Amendment. Because history tells us that it is, Officer Rodriguez had the authority to arrest Phillips.

At the Founding, the presence of a valid arrest warrant made an arrest reasonable. Under the common law, constables had broad inherent authority to arrest suspected criminals. See Atwater v. City of Lago Vista , 532 U.S. 318, 330–33, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) ; 4 William Blackstone, Commentaries on the Laws of England *289. Arrest warrants broadened that authority even further by vesting constables with the power of the justices of the peace. See Payton v. New York , 445 U.S. 573, 607–08, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (White, J., dissenting); 1 James Fitzjames Stephen, A History of the Criminal Law of England 189–91 (London, MacMillan & Co. 1883). Authority mattered because, before the advent of the exclusionary rule in the 20th century, the remedies for an illegal search or seizure were self-help and tort suits. See Utah v. Strieff , ––– U.S. ––––, 136 S.Ct. 2056, 2061, 195 L.Ed.2d 400 (2016). But an arrestee could not lawfully resist an officer who had a valid arrest warrant. See Thomas Y. Davies, Recovering the Original Fourth Amendment , 98 Mich. L. Rev. 547, 624–25 & nn.203–04 (1999). And a valid arrest warrant was and remains today a complete defense to a tort suit for false imprisonment. See Akhil Reed Amar, Fourth Amendment First Principles , 107 Harv. L. Rev. 757, 779 (1994) ; 3 Blackstone, supra , at *127; Rodriguez v. Ritchey , 556 F.2d 1185, 1193 (5th Cir. 1977) (en banc).

Precisely because warrants expanded an officer's authority and eliminated his tort liability, the Founding generation had concerns about them. The Founding generation was all too familiar with “general warrants,” which allowed officers of the King to “rummage through homes in an unrestrained search for evidence of criminal activity.” Riley v. California , ––– U.S. ––––, 134 S.Ct. 2473, 2494, 189 L.Ed.2d 430 (2014) ; see also William J. Stuntz & Andrew D. Leipold, Warrant Clause , in The Heritage Guide to the Constitution 426, 427–28 (David F. Forte & Matthew Spalding eds., 2d ed. 2014). English courts eventually held that general warrants were illegal absent legislative approval, see, e.g. , Wilkes v. Wood , 98 Eng. Rep. 489...