United States of America v. Derrick Phillips

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 10, 2024
Decided August 16, 2024
Before
MICHAEL Y. SCUDDER, Circuit Judge
DORIS L. PRYOR, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-1692
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DERRICK PHILLIPS,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 19-cr-30005
Colleen R. Lawless,
Judge.
O R D E R
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.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 23-1692 Page 2
Background
Law enforcement agents became aware of Phillips through a Drug Enforcement
Administration (DEA) investigation into DeAngelo McMahan, a suspected heroin traf-
ficker. 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 regis-
tered 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 an-
other train that night. About two weeks later, based on another tip from the DEA of-
ficer, 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 viola-
tion by “fail[ing] to stop or yield before leaving a driveway onto a road, public road-
way.” 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 Phil-
lips’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).)

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No. 23-1692 Page 3
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 traf-
fic 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 ar-
gue 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-drive-
way argument or object to the finding of waiver. The district court adopted the recom-
mendation, 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 cor-
rected 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 vi-
olation and, between the revocation hearing and the evidentiary hearing, Hiland testi-
fied 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 rec-
ommended 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 conflict-
ing testimony; and testimony at the hearing sufficiently explained how officers identi-
fied Phillips as the user of the phone. Phillips objected to the recommendation. He disa-
greed 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 ob-
tained 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.

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No. 23-1692 Page 4
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 vio-
lated 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 en-
trance, 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.

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No. 23-1692 Page 5
The government correctly responds that Phillips waived this argument. This
court can be confident that, during the evidentiary hearing on his first motion to sup-
press, 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 rec-
ord 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 ap-
pellate 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 applica-
tion 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 ap-
peal. See United States v. Gibson, 958 F.3d 661, 663 (7th Cir. 2020).
Waiver aside, the district court properly concluded that the officers justifiably be-
lieved 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 observa-
tions 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). There-
fore, 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 permit-
ted 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

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No. 23-1692 Page 6
traffic law, it does not matter that, in executing that lawful traffic stop, they were subjec-
tively motivated by the wire intercepts that initially brought Phillips to the DEA’s atten-
tion. 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 af-
firm.

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