United States v. Phillips
| Docket Number | 22-5053 |
| Decision Date | 26 June 2023 |
| Citation | 71 F.4th 817 |
| Parties | UNITED STATES of America, Plaintiff - Appellee, v. Michael Lamont PHILLIPS, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:21-CR-00363-CVE-1)
John Asa Lease Campbell (Roger M. Gassett with him on the briefs), of Aston, Mathis, Campbell PLLC, Tulsa, Oklahoma, for Defendant-Appellant.
Shelley Kay-Glenn Clemens, Assistant United States Attorney (Clinton J. Johnson, United States Attorney, with her on the brief), Office of the United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.
Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges.
Mr. Michael Lamont Phillips was stopped by police officers who observed him driving recklessly without a seat belt and suspected he lacked a valid driver's license. The officers searched his vehicle and recovered cocaine base. Following a failed motion to suppress, Mr. Phillips went to trial, where an officer testified that Mr. Phillips asserted his right to counsel as well as his tribal membership during the stop. Mr. Phillips was found guilty of one count of possession of cocaine base with intent to distribute.
On appeal, Mr. Phillips challenges the denial of his motion to suppress, arguing that the officers lacked reasonable suspicion for the stop and violated his Fourth Amendment rights by conducting a warrantless search of his vehicle. He also contends he was entitled to a mistrial based on the officer's trial testimony. We hold that the district court correctly found that the officers reasonably suspected Mr. Phillips of committing traffic violations and had probable cause to search the vehicle. We also hold that any error concerning the challenged trial testimony was harmless. Accordingly, we affirm Mr. Phillips' conviction.
On April 18, 2021, Tulsa Police Officers Michael Snyder and Will Mortensen were patrolling together in Tulsa, Oklahoma, following reports of gang activity, street racing, and violence. Officer Snyder observed several Chevrolet Tahoe vehicles being driven in a reckless manner, including speeding and changing lanes without signaling. Officer Snyder recognized the driver of one of those vehicles—a gold Tahoe—as Mr. Phillips, whom he had previously encountered. Officer Snyder could see that Mr. Phillips was not wearing a seatbelt and believed that Mr. Phillips had a suspended driver's license based on their prior interactions. At this time, Officer Snyder initiated a traffic stop of the gold Tahoe.
During the stop, which was recorded by both officers' body cameras, Officer Snyder approached the open window on the driver's side, and Officer Mortensen approached a closed window on the passenger side. Officer Mortensen asked Mr. Phillips to roll down the passenger window multiple times before he partially rolled it down. Officer Snyder quickly confirmed that Mr. Phillips did not have a valid license and discovered that there were two warrants for his arrest. Officer Snyder placed Mr. Phillips under arrest, and Officer Mortensen began a search of the vehicle. The search uncovered an open bottle of vodka, a flask of vodka, a large amount of cocaine base, a small amount of marijuana, and $246 in small denominations.
Mr. Phillips was indicted on one count of possessing cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).1 He filed a motion to suppress evidence obtained during the traffic stop, arguing that the officers lacked both reasonable suspicion to conduct the stop and a proper basis for conducting a warrantless search of his vehicle. The district court held a suppression hearing, during which Officers Snyder and Mortensen testified.
Although Mr. Phillips is not the registered owner of the gold Tahoe, Officer Snyder testified that he had stopped Mr. Phillips in that vehicle on at least three prior occasions, observed Mr. Phillips driving it on several other occasions, and never saw anyone else driving it. Both officers testified that they could smell alcohol and marijuana when they approached Mr. Phillips' vehicle. Officer Snyder detected both burnt and raw marijuana, whereas Officer Mortensen only smelled raw marijuana. The officers did not communicate with each other or Mr. Phillips about these odors, but Officer Snyder asked Officer Mortensen to begin an inventory search. Both officers testified that they believed they had probable cause to search the vehicle and were simultaneously conducting probable cause and inventory searches.
The district court denied Mr. Phillips' suppression motion. The court found the officers' testimony credible and concluded they reasonably suspected Mr. Phillips of committing a traffic violation. The court also concluded that the vehicle search was proper as both a probable cause and an inventory search.
Mr. Phillips proceeded to trial, during which Officer Snyder again testified. On direct examination, the prosecutor asked Officer Snyder if there was anything different about Mr. Phillips' demeanor during the instant traffic stop as compared to their prior encounters. Officer Snyder responded, "This time he was immediately wanting to call a lawyer, throwing up that he was a Creek citizen, trying to get his Creek ID out, when normally Mr. Phillips is pretty nice to me." Rec., vol. III at 80.
Defense counsel quickly moved for a mistrial based on the statement about Mr. Phillips invoking his constitutionally protected right to counsel. The prosecutor clarified that he did not intend to elicit this testimony and suggested the court give a limiting jury instruction. Without objection, the court gave the following instruction: Id. at 82.
The prosecutor then questioned Officer Snyder about Mr. Phillips' tribal membership, asking whether it was relevant to the stop. Officer Snyder responded, Id. The court then gave a limiting instruction sua sponte, instructing the jury to disregard statements concerning McGirt and its implications.
At the close of evidence, Mr. Phillips renewed his motion to suppress, which the district court denied. The jury then found Mr. Phillips guilty of the possession offense. The district court sentenced him to twenty-seven months' imprisonment followed by three years of supervised release. This timely appeal followed.
Mr. Phillips challenges the district court's denial of his suppression motion on multiple grounds, contending the officers lacked both reasonable suspicion to conduct the traffic stop and a valid basis for conducting a warrantless search of his vehicle. "When reviewing the denial of a motion to suppress, 'we view the evidence in the light most favorable to the government, accept the district court's findings of fact unless they are clearly erroneous, and review de novo the ultimate question of reasonableness under the Fourth Amendment.' " United States v. Cortez, 965 F.3d 827, 833 (10th Cir. 2020) (quoting United States v. McNeal, 862 F.3d 1057, 1061 (10th Cir. 2017)). Factual findings are clearly erroneous when "they are without factual support in the record" or when, "after reviewing all the evidence, we are left with the definite and firm conviction that a mistake has been made." United States v. Morgan, 936 F.2d 1561, 1573 (10th Cir. 1991).
Mr. Phillips first challenges the district court's conclusion that the officers had reasonable suspicion to initiate the traffic stop. "A traffic stop is a seizure for Fourth Amendment purposes, and must be justified by reasonable articulable suspicion under the standards set forth in Terry v. Ohio." United States v. Ledesma, 447 F.3d 1307, 1312 (10th Cir. 2006) (citation omitted). An officer may initiate a stop if he observes a traffic violation or "has a reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring." United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). "It is irrelevant that the officer may have had other subjective motives for stopping the vehicle." Id.
Under the reasonable suspicion standard, "the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Officers only need " 'some minimal level of objective justification' for making the stop." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984)). However, more than an "unparticularized suspicion or hunch" is required. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (internal quotation marks omitted).
The officers provided three reasons for initiating the traffic stop: (1) reckless driving; (2) driving without a seatbelt; and (3) driving without a valid license. Mr. Phillips argues that their testimony is contradicted by body camera footage and is otherwise not credible. We conclude, however, that the district court's contrary finding was not clearly erroneous.
Mr. Phillips contends Officer Snyder's testimony about reckless driving is conclusory. To the contrary, Officer Snyder...
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