Opinion
23-1692
08-16-2024
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DERRICK PHILLIPS, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1
Submitted July 10, 2024
Appeal from the United States District Court for the Central District of Illinois. No. 19-cr-30005 Colleen R. Lawless, Judge.
Before MICHAEL Y. SCUDDER, Circuit Judge DORIS L. PRYOR, Circuit Judge JOSHUA P. KOLAR, Circuit Judge
ORDER
Officers found heroin in Derrick Phillips's car after they stopped him for a traffic violation and, during the stop, a dog alerted to heroin in the car. In the prosecution that followed, Phillips unsuccessfully moved to suppress the heroin and pleaded guilty to possession with intent to distribute it, 21 U.S.C. § 841(a)(1), (b)(1)(B), reserving the right to contest the denial of his motion. On appeal, Phillips argues, for a reason that he did not present to the district court, that the traffic stop violated his Fourth Amendment rights. But the district court properly found that officers had reasonable suspicion for the traffic stop and probable cause to search the car. We therefore affirm.
Background
Law enforcement agents became aware of Phillips through a Drug Enforcement Administration (DEA) investigation into DeAngelo McMahan, a suspected heroin trafficker. During the investigation, the DEA intercepted McMahan's phone calls. See Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510. From the intercepts, the DEA learned that McMahan talked by phone to a person located near Quincy, Illinois, about traveling from Quincy to Chicago; that person's phone was registered to Deborah Berry, a Quincy resident. Berry's son, Phillips, also from Quincy, was the subject of other DEA investigations.
In an effort to arrest Phillips, a DEA officer supplied Inspector Nick Hiland of the Quincy Police Department with the intercepted information about Phillips. The officer told Hiland that Phillips would likely be travelling by train from Quincy to the Chicago area on September 14, 2017, to buy heroin from McMahan. That day, an officer watched Phillips board a train bound for Chicago in the morning and return to Quincy on another train that night. About two weeks later, based on another tip from the DEA officer, Hiland watched Phillips leave Quincy on a Chicago-bound train in the morning. Several Quincy officers waited for Phillips to return that night. One of the officers, John Westbrook, was stationed in an Amtrak parking lot and was assigned to watch Phillips "and follow him to see if he committed any traffic violations."
Phillips was arrested after his train returned to Quincy that night. As Westbrook later testified, he saw Phillips leave the Amtrak parking lot and commit a traffic violation by "fail[ing] to stop or yield before leaving a driveway onto a road, public roadway." This maneuver, Westbrook said, violated 625 ILCS 5/11-1205, which requires drivers to stop before entering a roadway. Westbrook relayed this information to Hi-land and a K-9 Unit officer, Mike Tyler, who were positioned nearby. Hiland and Tyler then stopped Phillips's car. During the brief stop, Tyler walked his dog around Phillips's car, and the dog alerted to the smell of narcotics at the driver's door. Officers searched the car and found a bag with about 200 grams of heroin.
A federal grand jury indicted Phillips with possession with intent to distribute 100 grams or more of a mixture or substance containing a detectable amount of heroin. See 21 U.S.C. § 841(a)(1), (b)(1)(B). Three times Phillips moved to suppress the recovered heroin. (Separately, because Phillips was on supervised release at the time of his arrest, the Probation Office petitioned to revoke that release. Phillips unsuccessfully sought to suppress the heroin in that proceeding, and the district court revoked Phillips's release. See United States v. Phillips, Doc. 43, No. 03-cr-30019 (C.D. Ill. Feb. 14, 2018).)
In his first motion, Phillips argued that the traffic stop was unlawful because the police did not have "probable cause" to believe he violated 625 ILCS 5/11-1205 as he left Amtrak's parking lot. He argued that the statute requires drivers to stop only when traffic is oncoming or pedestrians are present, and since neither had occurred, he did not violate the traffic code. Phillips's counsel also orally stated that Phillips planned to argue in briefing following an evidentiary hearing that the statute applied only to private driveways and that the driveway from the Amtrak lot was public. But Phillips never raised that argument in the briefing. The magistrate judge then ruled that Phillips waived the argument and recommended that the district court deny the motion because the obligation to stop is not limited to the presence of pedestrians or oncoming traffic. Phillips objected, disagreeing with that rationale, but he did not raise the private-driveway argument or object to the finding of waiver. The district court adopted the recommendation, overruled Phillips's objections, and denied Phillips's motion. (Initially, the court said that officers had "probable cause" to stop Phillips, but later the court corrected itself and stated that the officers had reasonable suspicion.)
Phillips unsuccessfully moved two more times to suppress. In his second motion he argued that the traffic stop was unlawful because Tyler did not observe the traffic violation and, between the revocation hearing and the evidentiary hearing, Hiland testified differently about where officers parked in the Amtrak lot. In his third motion, he urged the court to exclude the evidence because the government did not explain how the DEA linked Phillips to the phone that called McMahan. The magistrate judge recommended denying both motions. The judge reasoned that the stop was valid because Tyler could rely on Westbrook's observations that Phillips committed a traffic violation and, also, the DEA supplied information to suspect that Phillips was trafficking drugs; Phillips could have raised in his first suppression motion his argument about conflicting testimony; and testimony at the hearing sufficiently explained how officers identified Phillips as the user of the phone. Phillips objected to the recommendation. He disagreed with these rationales and added that the government waived reliance on the DEA information to justify the stop because it had failed to rely on it previously, the DEA obtained that information improperly, and the government violated its Brady obligations by not providing a subpoena for the phone intercepts. The district court ordered the government to supply the subpoena, and otherwise overruled Phillips's objections and denied the motions to suppress.
Phillips pleaded guilty, reserving his right to appeal the denial of the motion to suppress. The court sentenced Phillips to 120 months' imprisonment (with credit for time served) and an 8-year term of supervised release.
Analysis
On appeal, Phillips raises two arguments, but this court needs only to reach the first-his contention that the officers had no "probable cause" to stop him on the belief that he committed a traffic violation. (His second argument is that the information from the DEA intercepts was insufficient to provide "probable cause" to justify the stop.) This court reviews de novo the district court's legal conclusions about the lawfulness of the stop; it reviews factual findings underlying those conclusions for clear error. See United States v. Wilson, 963 F.3d 701, 703 (7th Cir. 2020).
Under the Fourth Amendment, a police officer may lawfully stop a car when the officer has reasonable suspicion that the car is involved in a traffic offense. See Rodriguez v. United States, 575 U.S. 348, 354 (2015). Phillips insists that Hiland and Tyler lacked probable cause to pull him over, but the Supreme Court has held that probable cause is not the standard because a routine traffic stop is more analogous to the type of brief stop at issue in Terry v. Ohio, 392 U.S. 1 (1968), than a formal arrest. Rodriguez, 575 U.S. at 354. As such, officers here needed only reasonable suspicion that Phillips committed a traffic offense to pull him over. Id.; Navarette v. California, 572 U.S. 393, 396-97 (2014). Further, the reasonable belief that a driver committed even a minor traffic infraction will support a stop. United States v. Jackson, 962 F.3d 353, 357 (7th Cir. 2020). Finally, the officer's subjective reason for stopping the car (i.e., suspicion of drug dealing) does not undermine the validity of the stop so long as the facts known to officers before stopping the car objectively support the stop. Whren v. United States, 517 U.S. 806, 813 (1996).
Phillips contends that, to justify the stop based on a reasonable belief that he violated 625 ILCS 5/11-1205, the government needed to, but did not, present evidence that the parking lot was a "private" road or driveway or that it was located in an "urban area." The statute reads in full:
The driver of a vehicle emerging from an alley, building, private road or driveway within an urban area shall stop such vehicle immediately prior to driving into the sidewalk area extending across such alley, building entrance, road or driveway, or in the event there is no sidewalk area, shall stop at the point nearest the street to be entered where the driver has a view of approaching traffic thereon, and shall yield the right-of-way to any pedestrian as may be necessary to avoid collision, and upon entering the roadway shall yield the right-of-way to all vehicles approaching on such roadway.
The government correctly responds that Phillips waived this argument. This court can be confident that, during the evidentiary hearing on his first motion to suppress, Phillips's counsel was aware of this argument, because counsel stated a plan to raise it in a brief. But, as the magistrate judge found in the recommendation to deny the motion to suppress, he never did. This omission is fatal because, had Phillips raised this contention, the magistrate judge could have asked the government to put into the record evidence of private ownership. Compounding this omission, in his objections to the magistrate judge's recommendation, Phillips did not object to the judge's finding of waiver. Counsel's strategic choices about which arguments to forgo will often waive appellate review. See United States v. Flores, 929 F.3d 443, 447-49 (7th Cir. 2019). And in this context-a failure to raise before the magistrate judge an argument about the application of a state's statute, and then a failure to raise before the district judge an objection to the magistrate judge's finding of waiver-Phillips has waived his argument on appeal. See United States v. Gibson, 958 F.3d 661, 663 (7th Cir. 2020).
Waiver aside, the district court properly concluded that the officers justifiably believed that Phillips violated 625 ILCS 5/11-1205, stopped the car, and, after the dog alerted to heroin, searched the car. Section 5/11-1205 requires that every driver leaving a driveway stop regardless of whether pedestrians or cars are present, and, if pedestrians or traffic are present, also yield before entering the street. The court had ample evi-dence-from Westbrook's testimony that he saw Phillips leave the driveway of the lot and turn onto the adjacent street without stopping-to rule that a reasonable officer could believe that Phillips violated § 5/11-1205. Further, Phillips does not now contest that, under the collective-knowledge doctrine, Westbrook could convey his observations to Tyler in order to stop Phillips's car. See United States v. Williams, 627 F.3d 247, 252 (7th Cir. 2010). In addition, an officer's reasonable but mistaken interpretation of a local law does not invalidate a stop. Heien v. North Carolina, 574 U.S. 54, 66 (2014). Therefore, even if the application of § 5/11-1205 to Amtrak's lot is reasonably debatable, that debate does not undermine the validity of the stop. Finally, Phillips does not contend that the stop lasted longer than necessary to process the offense. The stop thus permitted the use of the dog that alerted to heroin, supplying probable cause to search the car to recover that drug. See Illinois v. Caballes, 543 U.S. 405, 409 (2005); United States v. Plancarte, 105 F.4th 996, 999 (7th Cir. 2024). Therefore, the district court properly denied the motions to suppress.
Although both parties address whether the information from the DEA intercepts support the stop and search of Phillips's car, it is not necessary for this court to address the intercepts. Because the police had reasonable suspicion that Phillips violated a traffic law, it does not matter that, in executing that lawful traffic stop, they were subjectively motivated by the wire intercepts that initially brought Phillips to the DEA's attention. The district court thus properly ruled that officers had reasonable suspicion to stop Phillips based on a traffic violation and then permissibly developed probable cause for the car search that uncovered the heroin, which led to his guilty plea. Therefore, we affirm.