US v. Phillips

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 14-14660
D.C. Docket No. 1:14-cr-20162-JAL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TED PHILLIPS,
a.k.a. Duck,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Florida
(August 23, 2016)
Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and STORY, District Judge.

WILLIAM PRYOR, Circuit Judge:


Honorable Richard W. Story, United States District Judge for the Northern District of Georgia,
sitting by designation.


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 (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 (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 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (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
(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
(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
, 136 S. Ct. 2056, 2061 (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, 134 S. Ct. 2473, 2494 (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 (1763); Entick v.
Carrington, 95 Eng. Rep. 807 (1765), and many early state constitutions banned
them outright, see, e.g., Md. Const. of 1776, Decl. of Rights, Art. 23; Mass. Const.
of 1780, Pt. 1, Art. 14.


To ensure that the newly created Congress did not approve general warrants
in the future, the Founding generation ratified the Warrants Clause of the Fourth
Amendment. See Davies, supra, at 657–59. The Warrants Clause requires every
warrant to be particular, sworn, and supported by probable cause. See U.S. Const.
Amend. IV. A warrant is not valid, and it cannot render a search or seizure
reasonable, unless it satisfies these requirements.


Phillips contends that civil writs of bodily attachment do not satisfy the
Warrants Clause. In Florida, a court will issue a writ of bodily attachment for
unpaid child support if it determines, by a preponderance of the evidence, that a
person is liable for civil contempt. See Fla. Fam. L.R.P. 12.615(c); Dep’t of
Children and Families v. R.H., 819 So. 2d 858, 861 n.3 (Fla. Dist. Ct. App. 2002);
In Interest of S.L.T., 180 So. 2d 374, 379 (Fla. Dist. Ct. App. 1965). Specifically,
the court must find “that a prior order directing payment of support was entered
and that the alleged contemnor has failed to pay all or part of the support set forth
in the prior order.” Fla. Fam. L.R.P. 12.615(c)(1). Phillips contends that the Fourth
Amendment requires warrants to be based on probable cause of a crime, not
probable cause of a civil offense like contempt. He is mistaken.
The Fourth Amendment does not require warrants to be based on probable
cause of a crime, as opposed to a civil offense. Nothing in the original public
meaning of “probable cause” or “Warrants” excludes civil offenses. At the
Founding, “probable cause” meant “made under circumstances which warrant
suspicion.” Locke v. United States, 11 U.S. 339, 348 (1813) (Marshall, C.J.). And
“warrant” meant “[a] Precept under Hand and Seal to some Officer to bring an
Offender before the Person granting it.” Warrant, A New Law Dictionary 768
(Giles Jacob ed. 1739); accord 2 Warrant, A New and Complete Law-Dictionary
766 (Timothy Cunningham ed. 1765); 2 Warrant, American Dictionary of the
English Language 904 (Noah Webster ed. 1828).


Writs of bodily assistance for unpaid child support satisfy these definitions.
Florida courts issue the writ only after they find a person liable for civil contempt
by a preponderance of the evidence—a standard of proof that is higher than
probable cause, see United States v. Sokolow, 490 U.S. 1, 7 (1989). And a writ of
bodily attachment is a “warrant,” originally defined: it orders the contemnor’s
arrest and “direct[s]” that he “be brought before the court.” Fla. Fam. L.R.P.
12.615(c)(2)(B).


That a writ of bodily attachment is based on civil contempt, as opposed to a
crime, makes no difference. Civil warrants were common at the Founding and up
through the ratification of the Fourteenth Amendment. See, e.g., U.S. ex rel.
Deimel v. Arnold, 69 F. 987 (7th Cir. 1895) (writ of capias ad satisfaciendum);
Curry v. Johnson, 13 R.I. 121 (1880) (writ of replevin); Semayne’s Case, 77 Eng.
Rep. 194 (1604) (writ of replevin); Davies, supra, at 585 & n.94 (writ of
assistance); Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins,
Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83
Colum. L. Rev. 1365, 1370 (1983) (writ of assistance). Civil arrest warrants were
(and still are) subject to the same standards as criminal arrest warrants. See West v.
Cabell, 153 U.S. 78, 85–86 (1894).


The closest historical analog to the writ of bodily attachment for unpaid
child support is the bench warrant. A bench warrant, or, more traditionally, a
“capias,” instructs the police to arrest someone to ensure that he appears in court.
See Capias (Capias Ad Respondendum), Black’s Law Dictionary (10th ed. 2014);
Warrant (Bench Warrant), Black’s Law Dictionary (10th ed. 2014). Courts have
long issued bench warrants after holding someone in contempt. See William
Waller Hening, The New Virginia Justice 570 (Richmond, Johnson & Warner, 2d
ed. 1810); 4 Blackstone, supra, at *281–83. And the Federal Rules of Civil
Procedure today expressly contemplate bench warrants for “civil contempt of a
decree or injunction.” Fed. R. Civ. P. 4.1(b).


This Court has held that arrests based on bench warrants satisfy the Fourth
Amendment, see Simon v. United States, 644 F.2d 490, 494 (5th Cir. 1981), and
our sister circuits agree with that proposition even when the bench warrant is based
on civil contempt. The Seventh Circuit has held that a bench warrant for failure to
pay child support does not present a problem under the Fourth Amendment.
Armstrong v. Squadrito, 152 F.3d 564, 569–70 (7th Cir. 1998). And the Second
Circuit has explained why bench warrants satisfy the probable-cause requirement
of the Warrants Clause:


The decision of the [court] to issue a bench warrant constituted a
finding made by a neutral magistrate that [the defendant] had failed to
appear in a pending criminal matter. We recognize that its issuance
did not amount to a judicial finding of probable cause to arrest in the
traditional sense—with respect to the bank robberies (i.e., that a crime
had been committed and that defendant had committed it).
Nonetheless, the police, armed with the warrant, had authority to find
and seize [the defendant] anywhere they could find him for his failure
to appear in court. Thus, the presence of the police . . . was pursuant to
a direction made by a neutral magistrate. Defendant’s rights under the
Fourth Amendment require no more.


United States v. Spencer, 684 F.2d 220, 223 (2d Cir. 1982); accord United States v.
Gooch, 506 F.3d 1156, 1159 & n.1 (9th Cir. 2007); People v. Allibalogun, 727
N.E.2d 633 (Ill. App. Ct. 2000). We agree with our sister circuits. Because bench
warrants and writs of bodily attachment for unpaid child support are virtually
indistinguishable, the long historical pedigree of the former convinces us that the
latter also passes constitutional muster.


At oral argument, Phillips relied heavily on the decision of the Supreme
Court in Ashcroft v. al-Kidd, 563 U.S. 731 (2011), but that decision does not help
him. Al-Kidd involved the material-witness statute, which permits judges to issue
arrest warrants for witnesses whose testimony is “material in a criminal
proceeding” and whose presence cannot be practically secured by a subpoena. 18
U.S.C. § 3144. The majority opinion in al-Kidd speculated that material-witness
warrants might not be “Warrants” under the Fourth Amendment: “It might be
argued, perhaps, that when, in response to the English abuses, the Fourth
Amendment said that warrants could only issue ‘on probable cause’ it meant only
probable cause to suspect a violation of law, and not probable cause to believe that
the individual named in the warrant was a material witness.” 563 U.S. at 743; see
also id. at 745 (Kennedy, J., concurring). But the Court declined to resolve this
issue because al-Kidd had not raised the argument. See id. at 736, 740 & n.3
(majority opinion); id. at 744 (Kennedy, J., concurring). Because the Court did not
address the Warrants Clause in al-Kidd, that decision provides us no guidance.
Even if the Court had held that material-witness warrants are not warrants because
they are not based on “probable cause to suspect a violation of law,” id. at 743
(majority opinion), that holding would not affect our decision here. Writs of bodily
attachment, like bench warrants, are based on “a violation of law”—namely, civil
contempt. Phillips’s reliance on al-Kidd is misplaced.


We conclude that a writ of bodily attachment for unpaid child support is a
warrant for purposes of the Fourth Amendment. With possible exceptions not
relevant here, see Amar, supra, at 762 n.9, 780, an arrest based on a valid warrant
is per se reasonable. Accordingly, Officer Rodriguez could arrest Phillips based
solely on the civil writ of bodily attachment for unpaid child support. And because
Officer Rodriguez legally arrested Phillips, he could recover the firearm from
Phillips’s waistband as part of a search incident to arrest. See Birchfield v. North
Dakota, 136 S. Ct. 2160, 2174–76 (2016). The district court correctly denied the
motion to suppress.


B. The District Court Correctly Sentenced Phillips as an Armed Career
Criminal.


Phillips contends that the district court should not have sentenced him as an
armed career criminal, despite his eight prior convictions for possessing cocaine
with the intent to sell, Fla. Stat. § 893.13(1)(a). Philips argues that four of his prior
convictions do not qualify under the Act because, in 2002, the Florida legislature
amended the offense to remove a mens rea element. Phillips argues that two of his
prior convictions do not qualify under the Act because adjudication was withheld.
And he argues that none of his prior convictions qualify under the Act because
they were found by a judge, not a jury.


Phillips concedes that he did not raise these arguments in the district court,
but he asks us to review them for plain error. The government responds that we
cannot review these arguments at all because Phillips waived them, as opposed to
merely forfeiting them. The government also contends that all three arguments are
foreclosed by precedent. We agree with the government.


We start by clarifying the difference between waiver and forfeiture.
“Although jurists often use the words interchangeably,” Kontrick v. Ryan, 540 U.S.
443, 458 n.13 (2004), waiver and forfeiture are “not the same.” Freytag v.
Commissioner, 501 U.S. 868, 895 n.2 (1991) (Scalia, J., concurring in part and
concurring in the judgment). “[F]orfeiture is the failure to make the timely
assertion of a right[;] waiver is the ‘intentional relinquishment or abandonment of a
known right.’” Kontrick, 540 U.S. at 458 n.13 (second alteration in original)
(quoting United States v. Olano, 507 U.S. 725, 733 (1993)). When a defendant
forfeits an argument in the district court, we can review it for “plain error.” Fed. R.
Crim. P. 52(b). But when a defendant waives an argument in the district court, we
cannot review it at all because “no error” occurred in the first place. Puckett v.
United States, 556 U.S. 129, 138 (2009). “The defendant’s waiver is . . . a form of
consent that lifts a limitation on government action by satisfying its terms—that is,
the right is exercised and honored, not disregarded.” Wellness Int’l Network, Ltd. v.
Sharif, 135 S. Ct. 1932, 1962 (2015) (Thomas, J., dissenting).


Phillips waived his right to argue that he is not an armed career criminal.
Phillips pleaded guilty to violating the Armed Career Criminal Act, and his plea
agreement stated that he “understands and acknowledges that the Court . . . must
impose a term of imprisonment of no less than the statutory minimum of 15 years.”
At the sentencing hearing, his lawyer affirmatively asked the district court to
sentence him to 15 years under the Act. And when the presentence investigation
report stated that Phillips had eight qualifying convictions, Phillips chose not to
object. We have held that defendants waived their challenges to their sentences in
similar circumstances. See, e.g., United States v. Love, 449 F.3d 1154, 1157 (11th
Cir. 2006); United States v. Bennett, 472 F.3d 825, 833–34 (11th Cir. 2006). Based
on his conduct in the district court, Phillips cannot argue on appeal that he is not an
armed career criminal.


Even if Phillips had not waived his arguments, all three are foreclosed by
precedent. First, we have held that possessing cocaine with the intent to sell is a
“serious drug offense” even though the Florida legislature removed a mens rea
element in 2002. See United States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014).
Second, we have held that a Florida conviction qualifies under the Act even if
adjudication was withheld. See United States v. Santiago, 601 F.3d 1241, 1245
(11th Cir. 2010); accord Clarke v. United States, 184 So. 3d 1107, 1113–14 (Fla.
2016). Third, the Supreme Court has held that prior convictions can be found by a
judge, instead of a jury. See Almendarez-Torres v. United States, 523 U.S. 224,
247 (1998). Phillips concedes that these precedents have not been overruled.


IV. CONCLUSION


We AFFIRM Phillips’s conviction and sentence.