United States v. Tony Phillip

Filing

OPINION FILED - THE COURT: ROGER L. WOLLMAN, STEVEN M. COLLOTON and SUSAN O. HICKEY. Roger L. Wollman, Authoring Judge (PUBLISHED) [3917957] [11-3014]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-3014
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United States of America,
Appellee,
v.
Tony Phillips,
Appellant.

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*
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* Appeal from the United States
* District Court for the
* Northern District of Iowa.
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*
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Submitted: March 16, 2012
Filed: June 4, 2012
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Before WOLLMAN and COLLOTON, Circuit Judges, and HICKEY,1 District Judge.
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WOLLMAN, Circuit Judge.
Tony Phillips entered a conditional guilty plea to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Phillips
appeals his conviction, arguing that the district court2 erred in denying his motion to
suppress evidence. We affirm.

1

The Honorable Susan O. Hickey, United States District Judge for the Western
District of Arkansas, sitting by designation.
2

The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa, adopting the Report and Recommendation of the
Honorable Jon Stuart Scoles, United States Magistrate Judge for the Northern District
of Iowa.
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On October 25, 2010, a shooting took place at 1422 4th Avenue Southeast in
Cedar Rapids, Iowa. Police officers had information that Gregory Hollie possessed
a pistol when the shooting occurred and had given the pistol to another individual,
who was later arrested. An investigation revealed information that Hollie possessed
multiple firearms, was a convicted felon, and was wanted on a warrant for an
unrelated incident. Officers believed that Hollie was staying at 1418 4th Avenue
Southeast in Cedar Rapids.
During the early afternoon of October 27, 2010, Cedar Rapids Police Officer
John O’Brien and his partner were attempting to locate Hollie. The officers had seen
Hollie’s booking photo and had been told Hollie’s physical description—a black male
in his mid-thirties, who stands six feet tall, weighs two hundred fifteen pounds, and
is bald. O’Brien was driving an unmarked vehicle. As they headed westbound on the
1400 block of 4th Avenue Southeast, the officers observed a “male black subject”
walking eastbound on the sidewalk adjacent to 4th Avenue, approaching 1418. Hr’g
Tr. 7. According to O’Brien, he and his partner believed that the subject was Hollie.
The officers saw the subject turn towards 1418, but were unable to ascertain whether
he proceeded to the house located at 1418 or to the area between 1418 and 1422.
O’Brien then drove to the end of the block and later positioned his vehicle so
that he could view the alley behind the house. The officers observed a white vehicle
pull into the parking area behind 1418, and after again repositioning, saw the white
vehicle driving down the alley towards 14th Street. The officers observed a white
female driver, a white female passenger in the front seat, and the man they had seen
walking on 4th Avenue Southeast, who they believed to be Hollie, seated behind the
driver. Although the officers did not see the subject enter the car, O’Brien testified
that he was sure that it was the same individual they had seen walking near the front
of 1418. According to O’Brien, “the bald head really stuck out.” Hr’g Tr. 46.
After following the white vehicle for a few blocks, the officers initiated an
investigative stop. O’Brien conceded that there had been no traffic violations or any
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other independent reason to stop the vehicle. According to O’Brien, when the
occupants of the vehicle noticed the officers, the individual he believed was Hollie
began “fidgeting” or “manipulating” something to the right side of his body. Id. at 18.

O’Brien and his partner approached the vehicle and asked the occupants for
identification. O’Brien testified that “[a]t that point, I was convinced that it was Mr.
Hollie from all of the information that I had at that time.” Id. at 20. When the male
subject reached for his right rear pants pocket to retrieve his identification, he turned
his body away from O’Brien, which struck O’Brien as “a really unnatural maneuver.”
Id. According to O’Brien, “if your wallet is on your back right pocket, you’re going
to lean to the left and take the weight off of the wallet as opposed to putting more
weight on it to get it out of your pocket.” Id. O’Brien became concerned at this point
because “the suspect we were looking for was known to be armed, had just left an area
where a shooting had taken place, and now I’m getting this weird maneuver in the car
to shield his body from me to get his wallet out of his back pocket[.]” Id. at 21.
As the subject reached for his identification card, O’Brien asked him if he had
come from the residence located at 1418 4th Avenue Southeast. The subject replied
that he had not, but after O’Brien mentioned having seen him near that address, the
subject admitted that he had stopped by the house to give some money to a friend.
The subject handed O’Brien his identification card, which listed the name Tony
Phillips. O’Brien testified that he could not determine whether the person on the
identification card was the same person who was sitting in the back passenger’s seat,
in part because O’Brien had stepped back from the car to shield himself when the
subject was reaching awkwardly for his identification. O’Brien asked the subject to
step out of the car. As the subject was doing so, O’Brien asked if he had any weapons
in his possession. He replied that he had a pistol in his right front pocket. O’Brien
and his partner then placed the individual in handcuffs. After the subject exited the

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vehicle, O’Brien “was able to get a good look at his face, was able to determine that
the I.D. was good.” Id. at 26.
Phillips was charged with being a felon in possession of a firearm. The district
court found O’Brien’s testimony credible and denied Phillips’s motion to suppress.
Phillips argues that his motion should have been granted because the stop and
detention violated his Fourth Amendment right to be free from unreasonable searches
and seizures.
In reviewing the denial of a motion to suppress, we examine the district court’s
findings of fact for clear error and review de novo whether the investigatory stop and
search violated the Fourth Amendment. Ornelas v. United States, 517 U.S. 690, 699
(1996); United States v. Smith, 648 F.3d 654, 658 (8th Cir. 2011). “A law
enforcement officer may conduct an investigative stop of a vehicle if the officer has
a reasonable suspicion supported by articulable facts that criminal activity may be
afoot.” United States v. Robinson, 670 F.3d 874, 876 (8th Cir. 2012) (quoting United
States v. Sokolow, 490 U.S. 1, 7 (1989) and Terry v. Ohio, 392 U.S. 1, 30 (1968))
(internal quotations omitted). Phillips concedes that the officers would have had the
authority to seize and detain Hollie, who was wanted in connection with a recent
felony and was subject to an arrest warrant, but he argues that the record does not
support O’Brien’s asserted mistaken belief that Phillips was Hollie.
“[T]he validity of a stop depends on whether the officer’s actions were
objectively reasonable in the circumstances, and in mistake cases the question is
simply whether the mistake, whether of law or of fact, was an objectively reasonable
one.” United States v. Smart, 393 F.3d 767, 770 (8th Cir. 2005). Phillips contends
that O’Brien’s mistake was not objectively reasonable because the description of
Hollie and his booking photo identified common physical characteristics and because
O’Brien had observed Phillips for too short a period and from too far a distance to
identify him as Hollie. We disagree.

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As a six-foot, two-hundred pound, thirty-eight year old, bald black man,
Phillips closely matched Hollie’s description and booking photo. Although O’Brien’s
initial observation of Phillips was brief and from a distance, O’Brien testified that it
was “a good enough look to convince me that it was Gregory Hollie.” Hr’g Tr. 33.
Moreover, O’Brien observed Phillips approaching the house where the officers
believed Hollie to be staying. Given the totality of the circumstances, O’Brien’s
mistaken belief that Phillips was Hollie was objectively reasonable.
Phillips next argues that O’Brien had no reason to order him to exit the vehicle.
He contends that his identification card correctly identified him as Tony Phillips and
that O’Brien could have confirmed his identity by looking through the window.
During a lawful investigative stop, an officer may order a passenger to exit the
vehicle. See United States v. Cloud, 594 F.3d 1042, 1045 (8th Cir. 2010) (citing
Maryland v. Wilson, 519 U.S. 408, 415 (1997) (“We . . . hold that an officer making
a traffic stop may order passengers to get out of the car pending completion of the
stop.”)). The investigative stop was pending when O’Brien asked Phillips to exit the
car, for O’Brien had not yet determined whether the subject was Hollie. O’Brien
testified that he asked the subject to exit the vehicle because of the concern for officer
safety. Immediately after exiting the vehicle and before his identity could be fully
established, Phillips admitted to having a gun in his front pocket. We agree with the
magistrate judge’s determination that O’Brien’s “action seems particularly prudent in
this case, since O’Brien believed that he was dealing with an armed fugitive who had
been involved in a shooting two days earlier.” Report and Recommendation of April
11, 2011, at 8.
Because O’Brien’s mistake was objectively reasonable, the stop did not violate
the Fourth Amendment. The evidence obtained in the course of the investigative stop
thus was not the fruit of a constitutional violation. The district court’s judgment is
affirmed.
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