United States v. Bronson Flanders Phillips ( 2009 )

  •                                                            [DO NOT PUBLISH]
                          FOR THE ELEVENTH CIRCUIT
                            ________________________                  FILED
                                                             U.S. COURT OF APPEALS
                                   No. 08-13874                ELEVENTH CIRCUIT
                                                                   JUNE 10, 2009
                               Non-Argument Calendar
                                                                THOMAS K. KAHN
                           D. C. Docket No. 06-00016-CR-3
                      Appeal from the United States District Court
                         for the Southern District of Georgia
                                    (June 10, 2009)
    Before BIRCH, HULL and ANDERSON, Circuit Judges.
         Bronson Flanders Philips appeals his conviction and sentence for
    distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1).
          On appeal, Philips argues that the police did not have the reasonable
    articulable suspicion necessary to pull over his car, a black Camaro, because: (1)
    the confidential informant (“CI”), who told the police, after a controlled drug
    transaction, that the driver of a black Camaro had sold him drugs during this
    transaction, had acted unreliably; (2) the CI was unable to predict Philips’s future
    behavior, and thus there was insufficient corroboration for his statement to the
    police; and (3) the only specifics that the police officers knew about the car that
    was involved in the drug transaction was the fact that it was a clean 1998 Camaro
    with tinted windows, and these specifics were not distinctive enough for them to
    identify whether Philips’s Camaro was indeed that car.
          When a party does not file objections to a magistrate judge’s report, the
    factual findings of that report are reviewed for plain error. United States v.
    687 F.2d 347
    , 348 (11th Cir. 1982). However, the application of law to
    those facts is reviewed de novo. United States v. Simms, 
    385 F.3d 1347
    , 1356
    (11th Cir. 2004); Warren, 687 F.2d at 348 (11th Cir. 1982).
          Under the Fourth Amendment, officers may not conduct random
    suspicionless stops of vehicles. Delaware v. Prouse, 
    440 U.S. 648
    , 663, 
    99 S. Ct. 2
    1391, 1401, 
    59 L. Ed. 2d 660
     (1979). However, in the absence of probable cause, a
    police officer may stop a vehicle and briefly detain the persons inside “in order to
    investigate a reasonable suspicion that such persons are involved in criminal
    activity.” United States v. Tapia, 
    912 F.2d 1367
    , 1370 (11th Cir. 1990) (citing
    Terry v. Ohio, 
    392 U.S. 1
    88 S. Ct. 1868
    20 L. Ed. 2d 889
     (1968)). “In justifying
    such an intrusion . . . [the] police officer [must] be able to point to specific and
    articulable facts which, taken together with rational inferences from those facts,
    reasonably warrant that intrusion.” Tapia, 912 F.2d at 1370 (internal quotation
    marks omitted). When examining whether a police officer had the requisite
    reasonable suspicion to initiate a traffic stop, a court must look at the totality of the
    circumstances, and it must consider “the collective knowledge of the officers
    involved in the stop.” Id. We have held that reasonable suspicion and probable
    cause could be based on information provided by a CI who previously had
    provided reliable information in a number of other cases. United States v.
    170 F.3d 1350
    , 1353 (11th Cir. 1999).
          The police had the reasonable articulable suspicion necessary to pull over
    Philips’s vehicle because they were told, by a CI who had proven himself reliable
    in numerous past drug transactions, that the driver of a particular car, that they
    themselves had seen in a park, was selling drugs. The police officers then were
    personally able to identify Philips's car as the one to which the CI was referring,
    and this identification provided them with reasonable articulable suspicion.
          Philips next argues that his arrest, which occurred after the stop of his
    vehicle, was unconstitutional because it was based solely on contraband found in
    his passenger Bruce Gaines’s pocket, and there was no evidence that Philips was in
    any way connected to this contraband. Thus, he contends, the police officers did
    not have the probable cause necessary to arrest him. He further argues that a
    search of his vehicle and his person that was conducted incident to his arrest also
    was unconstitutional (because his arrest was unconstitutional), and the fruits of that
    search should be suppressed.
          As discussed above, an application of law to fact is reviewed de novo. See
    Warren, 687 F.2d at 348. The Fourth Amendment prohibits police officers from
    arresting a person unless they have probable cause to believe that person has
    committed a crime. United States v. Dunn, 
    345 F.3d 1285
    , 1289 (11th Cir. 2003).
    We have held that:
          For probable cause to exist, an arrest must be objectively reasonable
          based on the totality of the circumstances. This standard is met when
          the facts and circumstances within the officer's knowledge, of which
          he or she has reasonably trustworthy information, would cause a
          prudent person to believe, under the circumstances shown, that the
          suspect has committed, is committing, or is about to commit an
          offense. Although probable cause requires more than suspicion, it
          does not require convincing proof, and need not reach the same
          standard of conclusiveness and probability as the facts necessary to
          support a conviction.
    Id. at 1290 (internal punctuation marks omitted). The Supreme Court has held that
    if drugs are found in the backseat area of a car, those drugs can be used as a basis
    to arrest all of the car’s occupants because a reasonable officer could conclude that
    there was probable cause to believe that any of those occupants “had knowledge of,
    and exercised dominion and control over, the [drugs].” Maryland v. Pringle, 
    540 U.S. 366
    , 371-72, 
    124 S. Ct. 795
    , 800-01, 
    157 L. Ed. 2d 769
          In addition, once “an occupant of an automobile is the subject of a lawful
    arrest, the Fourth Amendment permits the arresting officers to contemporaneously
    conduct a warrantless search [incident to arrest]. . . of the passenger compartment
    of the automobile, as well as any closed (or open) containers found in this area of
    the automobile.” United States v. Gonzalez, 
    71 F.3d 819
    , 824, 825 (11th Cir.
    1996). The police also may search the person who is being arrested. Chimel v.
    395 U.S. 752
    , 762-63, 
    89 S. Ct. 2034
    , 2040, 
    23 L. Ed. 2d 685
          Even where a search violates the Fourth Amendment, however, the fruits of
    that illegal search still can be admissible, under the inevitable discovery doctrine, if
    the government can establish by a preponderance of the evidence that: (1) “the
    information would have ultimately been recovered by lawful means;” and (2) “the
    lawful means which made discovery inevitable were being actively pursued prior
    to the occurrence of the illegal conduct.” United States v. Virden, 
    488 F.3d 1317
    1322 (11th Cir. 2007) (emphasis in the original).
              The evidence that was found on Philips’ person was admissible, under the
    inevitable discovery doctrine, because the lawful arrest of his passenger entitled the
    police to search the passenger compartment of Philips’ car, and this search
    provided sufficient evidence to arrest Philips and to search him incident to his
              Philips next argues that the search warrant for his residence, which was
    obtained after his arrest, lacked sufficient indicia of reliability because it: (1) made
    no mention of the CI and the fact that much of what it presented as fact was based
    on the CI's hearsay statements; and (2) falsely stated that Philips's vehicle was seen
    heading to and from Lancelot Drive. In the alternative, Philips argues that the
    evidence obtained during the search of his residence should be suppressed as fruits
    of the poisonous tree stemming from the illegal search of his car.
              As discussed supra, a district court’s application of law to fact, in a motion
    to suppress, is reviewed de novo. See Warren, 687 F.2d at 348. However, if there
    is an error, in the context of suppression, we will not reverse a district court’s
    decision if we determine that, under the doctrine of harmless error, the error in
    question did not have any impact on the proceedings. United States v. Alexander,
    835 F.2d 1406
    , 1411 (11th Cir. 1988).
          A magistrate can only issue a search warrant upon a showing of probable
    cause, which is defined as “a fair probability that contraband or evidence of a
    crime will be found in a particular place.” Illinois v. Gates, 
    462 U.S. 213
    , 238, 
    103 S. Ct. 2317
    , 2332, 
    76 L. Ed. 2d 527
     (1983). In cases involving hearsay
    information, the magistrate must examine the “veracity” and “basis of knowledge”
    of the person supplying the information. Id. If a warrant was based on a deliberate
    or reckless misrepresentation made by a police officer, that warrant is illegal if “the
    misrepresentation was essential to the finding of probable cause.” United States v.
    928 F.2d 1030
    , 1040 (11th Cir. 1991). Evidence that is gathered through
    the police’s exploitation of an illegality must be suppressed as fruit of the
    poisonous tree. Wong Sun v. United States, 
    371 U.S. 471
    , 488, 
    83 S. Ct. 407
    , 417,
    9 L. Ed. 2d 441
          Irregularities in the affidavit for the search warrant of Philips's residence do
    not invalidate that warrant because: (1) the omission of the fact that some
    statements in the affidavit were hearsay was harmless error, as those statements
    were reliable; and (2) misrepresentations in the affidavit were not essential to the
    finding of probable cause. Although it was error to omit the fact that the
    connection between the vehicle and the drug transaction was provided by the CI,
    the error was harmless because the magistrate would have found the CI to be
    reliable, based on his past dozen cases. Additionally, the minor technical errors he
    made in this case would not have undermined such a finding. Turning to the
    misrepresentations, they were not crucial to a finding of probable cause. The
    warrant’s statement that Philips was involved in a drug transaction and that drugs
    and drug money were discovered in his car were enough to lead to a reasonable
    inference that Philips was dealing drugs and that there was a “fair probability” that
    more drugs would be found in his home. Finally, the results of the search of
    Philips's residence did not constitute fruit of the poisonous tree because the police
    did not commit any illegalities that would warrant suppression of the evidence in
    this case.
           Philips finally argues that the $150,000 fine imposed on him by the district
    court at sentencing was excessive and violated the Eighth Amendment because it
    was based primarily on his receipt of disability benefits, and the evidence showed
    that those benefits would be cut by 90% once he was sentenced.
           If a defendant raises his inability to pay a fine as an issue before the district
    court, the court’s decision is reviewed for clear error under the doctrine of
    reasonableness. United States v. Gonzalez, 
    541 F.3d 1250
    , 1255 (11th Cir. 2008).
    However, if a sentencing issue is raised for the first time on appeal, we will review
    that issue only for plain error. United States v. Aguillard, 
    217 F.3d 1319
    , 1320
    (11th Cir. 2000). Under plain error review, there must be (1) an error, (2) that is
    plain, and (3) that affects substantial rights. Id. When these three factors are met,
    we may then exercise our discretion and correct the error if it seriously affects the
    fairness, integrity, or public reputation of the judicial proceedings. United States v.
    507 U.S. 725
    , 732, 
    113 S. Ct. 1770
    , 1776, 
    123 L. Ed. 2d 508
          The Eighth Amendment prohibits the government from imposing “excessive
    fines” for an offense. U.S. Const., amend VIII. Under this amendment, a fine is
    unconstitutional “if it is grossly disproportional to the gravity of a defendant's
    offense.” United States v. Bajakajian, 
    524 U.S. 321
    , 334, 
    118 S. Ct. 2028
    , 2036,
    141 L. Ed. 2d 314
     (1998). With regard to reasonableness, we will consider a fine
    to be reasonable if the record reflects “the district court's reasoned basis for
    imposing a fine.” Gonzalez, 541 F.3d at 1256.
          The fine imposed on Philips was reasonable because the record indicates that
    the district court had a reasoned basis for imposing it. The district court found
    there was a reasonable possibility that Philips’s disability benefits would not be
    reduced after his imprisonment, and therefore it imposed a large fine that takes that
    possibility into account. If Philips’s benefits are actually cut after his
    imprisonment, the district court indicated that it would consider remitting the fine.
    Therefore, because the record reflects the district court’s reasoned basis for
    imposing the fine, this fine was reasonable. This fine also does not constitute plain
    error, under the Eighth Amendment, because there is no evidence that it was
    disproportionate to Philips's offense. Accordingly, we affirm the district court’s