United States v. Sonny Phillips
677 F. App'x 294
6th Cir.
2017
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UNITED STATES of America, Plaintiff-Appellee, v. Sonny Lamarr PHILLIPS, Defendant-Appellant.

No. 16-1758

United States Court of Appeals, Sixth Circuit.

Filed February 22, 2017

294

foreclosing the possibility that he might own it.

The district court issued a memorandum and order, granting Chrysler‘s motion for summary judgment on Davis‘s contract claims and deferring consideration of his racial discrimination claims due to some controverted facts. In a supplement to the memorandum and order, the district court granted Chrysler‘s motion for summary judgment on Davis‘s race discrimination claims because it found that Davis had failed to establish that another Chrysler еmployee was similarly situated to him. It also found that Davis had failed to proffer evidence to establish that Chrysler‘s statеd reasons for its decisions were false or a pretext for race discrimination. Davis appeals only the distriсt court‘s dismissal of his race discrimination claim.

After carefully reviewing the record, the applicable law, and the parties’ briefs, we are convinced that the district court did not err in its conclusions. The district court‘s opinion carefully and correctly sets out the law governing the issues raised and clearly articulates the reasons underlying its decision. Thus, issuance of a full written opinion by this court would serve no useful purpose. Accordingly, for the reasons stated in the district court‘s opinion, we AFFIRM.

Andrew James Lievense, Office of the U.S. Attorney, Detroit, MI, for Plaintiff-Appellee

Richard D. Korn, Law Offices, Detroit, MI, for Defendant-Appellant

BEFORE: CLAY, SUTTON, and GRIFFIN, Circuit Judges.

GRIFFIN, Circuit Judge.

Defendant Sonny Phillips appeals his conditional guilty-plea conviction fоr felon-in-possession ‍​​​​‌‌‌​​​​​‌​‌​‌​‌‌‌​​‌‌‌‌‌‌​​​‌​​​​‌​​​​​‌‌‌​‌‍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 pоssible 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 prоtruding 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, Philliрs‘s gun fell from his pocket. Phillips left it behind and continued running. One of the officers, however, did not. He stopped and recоvered the firearm while his partners pursued Phillips, eventually tracking him down and arresting him.

Facing a charge of felon-in-pоssession, 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 оne or the other, there can be no Fourth Amendment violation. Raising the latter type of claim, Phillips contends he wаs unreasonably seized when police exited their vehicles, requiring suppression of the firearm recovered аs a result of that constitutional violation. A Fourth Amendment seizure occurs only when an officer (1) “applies physicаl force to restrain a suspect” or (2) uses a “show of authority” that actually causes the suspect to submit. (quotation omitted). A suspect who flees from police ‍​​​​‌‌‌​​​​​‌​‌​‌​‌‌‌​​‌‌‌‌‌‌​​​‌​​​​‌​​​​​‌‌‌​‌‍is not “seized” in either sense of the word. See . 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. .

Defendant acknowledges ‘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 plаce (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 tainting any evidence seized after that point. But, as defendant concedes, we rejected this argument in (holding that applies “even if the attempted seizure or show of authority constitutes police misconduct“); see also (assuming a Terry violation prior to the suspect‘s flight).

Defendant also argues that is inapplicable because he inadvertently dropped his weapon, ‍​​​​‌‌‌​​​​​‌​‌​‌​‌‌‌​​‌‌‌‌‌‌​​​‌​​​​‌​​​​​‌‌‌​‌‍as opposed to “intentionally abandoning” it as did. makes no such distinction. Quite to the contrary, relied on , which used “abandon[]” to refer to both throwing away and dropping items. ; see (citing ). Moreover, this court has previously applied to unintentionally relinquished contraband. See ; (unрublished table decision). As these cases implicitly recognize, ‘s holding pertains to the moment at which a person is seized. We use ‍​​​​‌‌‌​​​​​‌​‌​‌​‌‌‌​​‌‌‌‌‌‌​​​‌​​​​‌​​​​​‌‌‌​‌‍an entirely different framework when it comes to effects, see , 499 U.S. at 627 n.3, 111 S.Ct. 1547, one that asks whether the owner has a legitimate expectation of privacy in the item, see, e.g., (Harlan, J., concurring). And though they use different reasoning— with its discussion of “abandonment” and with its “plain view” analysis—both cases are grounded in the legitimate expectation-of-privacy maxim. See (“[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)); (“[U]nder the fourth amendment nо governmental ‘search’ occurs if the place or object examined is publicly exposed ‍​​​​‌‌‌​​​​​‌​‌​‌​‌‌‌​​‌‌‌‌‌‌​​​‌​​​​‌​​​​​‌‌‌​‌‍such that no рerson can reasonably have an expectation of privacy.” (alteration in original) (quoting )). 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 оf the weapon was not unreasonable. Nor, for the reasons stated in , was it the product of an unreasonable seizure of his person.

III.

For the foregoing reasons, we affirm.

GRIFFIN

CIRCUIT JUDGE

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