USA v. Sonny Phillip

Filing

OPINION filed : AFFIRMED, decision not for publication. Eric L. Clay, Circuit Judge; Jeffrey S. Sutton, Circuit Judge and Richard Allen Griffin, Authoring Circuit Judge.

Case: 16-1758

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NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0120n.06
No. 16-1758
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SONNY LAMARR PHILLIPS,
Defendant-Appellant.

FILED
Feb 22, 2017
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

BEFORE: CLAY, SUTTON, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant Sonny Phillips appeals his conditional guilty-plea conviction for felon-inpossession on grounds that the district court erred in denying his motion to suppress. We affirm.
I.
Shortly before 10 p.m. on September 8, 2014, three Detroit police officers were on
routine patrol. They were on the lookout for possible vehicle thefts and saw Sonny Phillips
walking alongside cars parked in the street. Their interest piqued, the officers activated their
spotlights on Phillips. As Phillips walked past them, they slowed to a stop and saw the handle of
a black handgun protruding from his pocket. With their interest now turning to suspicion, the
officers got out of their patrol car to investigate, but before they could say a word, Phillips took
off running. The officers gave chase, ordering Phillips to stop. Moments into the pursuit,

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Phillips’s gun fell from his pocket. Phillips left it behind and continued running. One of the
officers, however, did not. He stopped and recovered the firearm while his partners pursued
Phillips, eventually tracking him down and arresting him.
Facing a charge of felon-in-possession, defendant moved to suppress the firearm as fruit
of an unlawful seizure. The district court denied the motion. Defendant later agreed to plead
guilty on the condition he could appeal the motion-to-suppress decision. He now appeals.
II.
An indispensable element to any Fourth Amendment challenge is a “search” or
“seizure”—without one or the other, there can be no Fourth Amendment violation. Raising the
latter type of claim, Phillips contends he was unreasonably seized when police exited their
vehicles, requiring suppression of the firearm recovered as a result of that constitutional
violation. A Fourth Amendment seizure occurs only when an officer (1) “applies physical force
to restrain a suspect” or (2) uses a “show of authority” that actually causes the suspect to submit.
United States v. Jeter, 721 F.3d 746, 751–52 (6th Cir. 2013) (quotation omitted). A suspect who
flees from police is not “seized” in either sense of the word. See California v. Hodari D.,
499 U.S. 621, 626 (1991). Thus, as the Supreme Court held long ago, when a fleeing suspect
sheds evidence before being apprehended, as defendant did in this case, it is not the product of a
“seizure” and thus no violation of the Fourth Amendment to collect and use that evidence against
him. Id. at 629.
Defendant acknowledges Hodari D.’s controlling presence in this case, but he offers two
ways to distinguish it. First, he contends that the officers did not have reasonable suspicion to
believe he was engaged in criminal activity in the first place (after all, it is not necessarily a
crime to own and carry a firearm, see, e.g., U.S. Const. amend. II; M.C.L. § 750.227(2)), thereby

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tainting any evidence seized after that point. But, as defendant concedes, we rejected this
argument in United States v. Martin. 399 F.3d 750, 753 (6th Cir. 2005) (holding that Hodari D.
applies “even if the attempted seizure or show of authority constitutes police misconduct”); see
also Hodari D., 499 U.S. at 623 n.1 (assuming a Terry violation prior to the suspect’s flight).
Defendant also argues that Hodari D. is inapplicable because he inadvertently dropped
his weapon, as opposed to “intentionally abandoning” it as Hodari D. did. Hodari D. makes no
such distinction. Quite to the contrary, Hodari D. relied on Hester v. United States, 265 U.S. 57
(1924), which used “abandon[]” to refer to both throwing away and dropping items. Id. at 58;
see Hodari D., 499 U.S. at 629 (citing Hester, 265 U.S. at 58). Moreover, this court has
previously applied Hodari D. to unintentionally relinquished contraband. See United States v.
Britton, 335 F. App’x 571, 575–76 (6th Cir. 2009); United States v. Caldwell, 238 F.3d 424,
2000 WL 1888682, at *7 (6th Cir. 2000) (unpublished table decision). As these cases implicitly
recognize, Hodari D.’s holding pertains to the moment at which a person is seized. We use an
entirely different framework when it comes to effects, see Hodari D., 499 U.S. at 627 n.3, one
that asks whether the owner has a legitimate expectation of privacy in the item, see, e.g., Katz v.
United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). And though they use different
reasoning—Caldwell with its discussion of “abandonment” and Britton with its “plain view”
analysis—both cases are grounded in the legitimate expectation-of-privacy maxim.
See Caldwell, 2000 WL 1888682, at *7 (“[T]he question [of abandonment] is whether the person
claiming an interest has an objectively reasonable expectation of privacy with respect to the
property.” (citation omitted)); Britton, 335 F. App’x at 576 (“[U]nder the fourth amendment no
governmental ‘search’ occurs if the place or object examined is publicly exposed such that no
person can reasonably have an expectation of privacy.” (alteration in original) (quoting United

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States v. Eubanks, 876 F.2d 1514, 1516 (11th Cir. 1989))).

Following that same Fourth

Amendment lodestar, we hold that Phillips gave up any legitimate expectation of privacy in his
handgun when he dropped it in a public street and left it behind for the world to see. Therefore,
the officer’s seizure of the weapon was not unreasonable. Nor, for the reasons stated in Hodari
D., was it the product of an unreasonable seizure of his person.
III.
For the foregoing reasons, we affirm.

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