USA v. Cheston Kontras Philpot

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12655
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHESTON KONTRAS PHILPOT,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:20-cr-60086-RAR-1
____________________
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2 Opinion of the Court 21-12655
Before R OSENBAUM , BRANCH , and GRANT, Circuit Judges.
PER CURIAM:
Cheston Philpot appeals the denial of his motion to suppress
evidence of the firearms and ammunition he later was convicted of
possessing, in violation of 18 U.S.C. § 922(g)(1). He contends that
suppression was required because the evidence was the product of
an unlawful seizure at a casino in Hollywood, Florida, while he was
working private security. In denying the motion to suppress, the
district court found that his initial encounter with police was con-
sensual, so Philpot had not been seized when he admitted to pos-
sessing a concealed gun, which provided reasonable suspicion to
conduct a brief detention and patdown for weapons. After careful
review, we affirm.
I.
The essential facts are largely undisputed. On February 1,
2020, during the weekend of the Super Bowl, law-enforcement of-
ficers patrolling the Seminole Hard Rock Hotel and Casino ob-
served an individual, later known to be Philpot, wearing a black
shirt, black pants, a black backpack, and a silver security enforce-
ment badge. The badge was not recognized as one affiliated with
any local or federal law-enforcement agency or with casino secu-
rity.
Detective Tammy McConnell of the Seminole Police De-
partment approached Philpot, introduced herself, and asked to
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21-12655 Opinion of the Court 3
speak with him for a few minutes in a conversational tone.
McConnell was wearing a modified uniform, including a polo shirt
with an embroidered badge, with a holstered firearm. Philpot said
“yes,” and McConnell asked him to step near the entrance of the
comedy club where there was less noise and less of a crowd. He
did so. Detective Dan McGillicuddy, who was in plain clothes, ar-
rived soon after and stood just behind Philpot. McGillicuddy no-
ticed something pushing through the material of Philpot’s back-
pack that looked to him like the muzzle of a firearm. He tried to
alert McConnell, but she missed his hand gesture.
Detective McConnell began by asking Philpot about his se-
curity badge. Philpot explained that he was a bodyguard and was
guarding a woman that evening. McConnell then asked Philpot
for identification, and he produced a work identification that re-
flected he was an adult entertainer bouncer. When asked if he car-
ried a gun, Philpot said “yes” before saying “no.” McConnell fol-
lowed up by asking if he had a concealed-weapons permit. Philpot
said he did, but it was in his car. McConnell then asked for addi-
tional identification, and Philpot produced his Georgia driver’s li-
cense, which McConnell ran through dispatch. No warrants ap-
peared, and dispatch was unable to confirm whether Philpot had a
valid concealed-weapons permit, because—according to Philpot—
the permit had been issued by the state of Georgia, not Florida.
McConnell also instructed dispatch to check Philpot’s criminal his-
tory, which came back negative.
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4 Opinion of the Court 21-12655
After about four or five minutes of conversation, the female
companion Philpot was guarding approached. Detective
McConnell returned Philpot’s license and called for backup on the
radio. She then asked for consent to search his backpack. Philpot
responded that he was “out of here” and began to quickly walk
away from the area.
As Philpot walked away, Detective McGillicuddy told De-
tective McConnell that Philpot had a gun in his backpack and
needed to be detained. McConnell radioed for uniformed officers,
and both she and McGillicuddy, accompanied by a few other offic-
ers, began to follow Philpot, who left the casino. Several officers
converged on Philpot, and McGillicuddy briefly put his hand on
Philpot’s backpack and immediately yelled “gun.” McGillicuddy
testified that, during his brief touch of the backpack, he felt a pro-
trusion like the upper half of a rifle. A subsequent patdown search
revealed a 9mm handgun on Philpot’s waist in a holster. Officers
then opened the backpack and found a Kel-Tec 5.56mm semi-auto-
matic pistol, 16 rounds of 9mm ammunition, and 26 rounds of
5.56mm ammunition. A later criminal-history check revealed that
Philpot had been convicted of a felony under an alias.
II.
Philpot was charged by indictment with one count of pos-
session of a firearm and ammunition after a felony conviction, in
violation of 18 U.S.C. § 922(g)(1). Before trial, he moved to sup-
press evidence of the firearms and ammunition, arguing that his
encounter with police was a seizure without reasonable suspicion
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21-12655 Opinion of the Court 5
and that the manipulation of his backpack was an unreasonable
search. The government replied that the encounter was consen-
sual at the outset and that reasonable suspicion to detain and frisk
Philpot arose once he admitted to possessing a firearm.
The district court held a suppression hearing, at which the
government called Detectives McConnell and McGillicuddy as wit-
nesses and introduced surveillance videos from the Casino, among
other evidence. The court then denied the motion to suppress in a
written order. After making detailed findings of fact, which we
have summarized above, the court reached legal several conclu-
sions. First, it determined that the initial encounter between De-
tective McConnell and Philpot was consensual and did not impli-
cate the Fourth Amendment. Second, it found that the officers had
reasonable suspicion to detain and frisk Philpot once he admitted
he was carrying a weapon. And third, it determined that Detective
McGillicuddy’s frisk and subsequent search of the backpack were
justified, and that the evidence would have been admissible any-
way as a search incident to arrest after a gun was found on Philpot’s
person. The district court later found Philpot guilty at a bench trial
based on stipulated facts. Philpot appeals.
III.
When reviewing the denial of a motion to suppress, we re-
view the district court’s factual determinations for clear error and
the application of the law to those facts
de novo.
United States v.
Dixon, 901 F.3d 1322, 1338 (11th Cir. 2018). All facts are construed
in the light most favorable to the prevailing party.
Id.
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6 Opinion of the Court 21-12655
IV.
The Fourth Amendment protects individuals from “unrea-
sonable searches and seizures.” U.S. Const. amend. IV. Evidence
obtained in violation of the Fourth Amendment ordinarily must be
suppressed.
United States v. Jordan, 635 F.3d 1181, 1185 (11th Cir.
2011).
“A seizure under the Fourth Amendment happens when the
officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen.”
United States v.
Franklin, 323 F.3d 1298, 1301 (11th Cir. 2003). A seizure triggers
constitutional scrutiny and must be justified by either reasonable
suspicion or probable cause, depending on the severity of the in-
trusion.
Jordan, 635 F.3d at 1185. Reasonable suspicion of criminal
activity—a less demanding standard than probable cause—justifies
a brief, investigatory detention, while reasonable suspicion that a
suspect is armed and dangerous justifies a protective patdown
search for weapons.
See Illinois v. Wardlow, 528 U.S. 119, 123
(2000);
Minnesota v. Dickerson, 508 U.S. 366, 373 (1993).
But not all police questioning constitutes a seizure.
United
States v. Perez, 443 F.3d 772, 778 (11th Cir. 2006). Even without
particularized suspicion, officers may approach individuals on the
street or other public places, ask them questions if they are willing,
ask for identification, and request consent to search—“provided
they do not induce cooperation by coercive means.”
United States
v. Drayton, 536 U.S. 194, 200–01 (2002). Such interactions are
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21-12655 Opinion of the Court 7
referred to as “consensual encounter[s]” that do not trigger Fourth
Amendment scrutiny.
Jordan, 635 F.3d at 1186.
To determine whether a seizure has occurred, we ask
whether a “reasonable person would feel free to decline the offic-
ers’ requests or otherwise terminate the encounter.”
Drayton, 536
U.S. at 202 (quotation marks omitted). If so, no seizure has oc-
curred.
Id. In making this determination, we examine the totality
of the circumstances, including these factors: (1) whether the sus-
pect’s path is blocked; (2) whether identification is retained; (3) the
suspect’s age, education, and intelligence; (4) the length of the de-
tention and questioning; (5) the number of police officers present;
(6) whether weapons were displayed; (7) any physical touching of
the suspect; and (8) the language and tone of the officers.
Jordan,
635 F.3d at 1186. These factors are not exhaustive and are not
meant to be applied rigidly.
Id.
Here, the district court did not err in denying Philpot’s mo-
tion to suppress. Contrary to Philpot’s claim, the initial encounter
with Detective McConnell was consensual under binding prece-
dent. McConnell was permitted to approach Philpot in a public
place and ask whether he would be willing to speak with her.
See
Drayton, 536 U.S. at 200–01. And McConnell did not employ any
coercive means to induce Philpot’s cooperation.
See id.;
Jordan,
635 F.3d at 1186. At that time, McConnell was alone, her gun was
holstered, she used a conversational tone, and she did not touch
Philpot. Philpot said “yes,” and he agreed with McConnell’s
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8 Opinion of the Court 21-12655
request to move to a less noisy and crowded area, which was
nearby and in the same public area.
Once in front of the comedy club, Detective McConnell en-
gaged Philpot in a brief dialogue—lasting no longer than five
minutes—mainly about his badge and his job, and permissibly
asked for identification.
See Drayton, 536 U.S. at 200–01.
McConnell’s “language and tone were purely conservational in na-
ture,” according to the district court, and Philpot “was of suitable
age, education, and intelligence.” While another detective was sta-
tioned just behind Philpot, that factor does not weight heavily in
the analysis. The other detective was in plain clothes and did not
participate in the questioning, block Philpot’s path, touch him, or
take any action that could be construed as coercive. It’s not even
clear Philpot was aware of his presence.
While McConnell retained Philpot’s driver’s license, the dis-
trict court correctly concluded that this factor did not tip the bal-
ance towards a seizure. Retention of documents such as a driver’s
license may be a significant factor weighing in favor of a seizure,
United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984), but
it is not dispositive on its own,
see, e.g.,
United States v. De La
Rosa, 922 F.2d 675, 678 (11th Cir. 1991) (“[E]ven though the de-
fendant’s driver’s license may have been temporarily retained, a
reasonable person, under the totality of the circumstances, would
have believed he was free to leave.”). And here, Philpot voluntarily
gave his driver’s license to McConnell, and she kept it for less than
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21-12655 Opinion of the Court 9
five minutes. She also promptly returned the license once the
woman whom Philpot was guarding arrived.
In any case, by the time Detective McConnell asked for and
retained Philpot’s driver’s license, reasonable grounds to detain
Philpot had arisen on suspicion that he was carrying a concealed
weapon in violation of Florida law.
See Fla. Stat. § 790.01(2) (“A
person who carries a concealed firearm on or about his person
commits a felony of the third degree.”). The district court found,
consistent with the testimony at the suppression hearing, that Phil-
pot handed over his driver’s license
after he had admitted, and then
tried to retract, that he was carrying a gun.1 In
United States v.
Lewis, we held that an individual’s “admission to carrying a con-
cealed weapon” in Florida provides reasonable suspicion to justify
a brief detention to investigate the crime of carrying a concealed
weapon, notwithstanding that the individual may have a valid per-
mit, which, we noted, is an affirmative defense and not an element
of the offense. 674 F.3d 1298, 1304 (11th Cir 2012). As a result,
McConnell was justified in detaining Philpot and retaining his
driver’s license to investigate whether his possession of the gun he
admitted to possessing was lawful.
See id. Plus, Philpot did not
produce a valid permit for the gun.
1 Meanwhile, Detective McGillicuddy observed what looked to him like—and
what in fact turned out to be—the muzzle of a firearm pushing against the
fabric of the backpack, which further supports the existence of reasonable sus-
picion.
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10 Opinion of the Court 21-12655
In short, the totality of the circumstances shows little more
than the typical societal pressures inherent in any citizen-police en-
counter, which is not sufficient to show that a seizure occurred.
See United States v. Baker, 290 F.3d 1276, 1278 (11th Cir. 2002)
(“The societal pressure to stop and speak with law enforcement is
not a sufficient restraint of liberty to raise the interaction to a level
that requires constitutional protection.”). And the officers pos-
sessed reasonable suspicion to detain and frisk Philpot once he ad-
mitted to carrying a concealed weapon. The district court properly
denied suppression on these facts.
For these reasons, we affirm the denial of Philpot’s motion
to suppress and his resulting conviction.
AFFIRMED.
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