May 31, 2016
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No. 1:14-cr-00203
- Tanya Walton Pratt, Judge.
Easterbrook and Williams, Circuit Judges, and Yandle,
District Judge. [*]
WILLIAMS, CIRCUIT JUDGE.
McPhaul already had a violent felony conviction on his record
when he was caught driving with a loaded gun in the car,
while wearing body armor. He was charged with being a felon
in possession of a gun, and with being a violent felon in
possession of body armor. A jury convicted him on the body
armor charge but acquitted him on the gun charge. On appeal,
he argues that the body armor should have been suppressed
because it was discovered through an unconstitutional search.
We disagree. The pat-down that revealed the body armor was
lawful because officers had probable cause to stop
McPhaul-for minor traffic violations, driving on a suspended
license, and using a car to flee officers.
also challenges two Sentencing Guidelines enhancements, one
for using the body armor "in connection with another
felony offense, " and another for attempting to obstruct
justice. We reject these challenges too. McPhaul used a car
to flee officers, which is a felony, and he wore the body
armor while doing so. And when he was in pre-trial custody,
he attempted to obstruct justice through several letters he
wrote to his cousin. So we affirm his conviction and
Officer Andrew Sell saw a car turn right from the center lane
on a three-lane road and then drive through private property
to avoid a red light. Using his computer, Sell learned that
the car was registered to Djuane McPhaul, whose license was
suspended. Sell observed that the driver looked like McPhaul
(the computer displayed McPhaul's picture). Sell decided
to stop the car, but the driver made some quick turns and
then led the police on a mile-long "slow-speed"
chase, even after Sell activated his lights and siren. When
the driver finally stopped and was arrested, a pat-down
revealed that he was wearing body armor, and a loaded gun was
found in the car's center console.
driver was McPhaul, who had previously been
convicted of a crime of violence. He was charged with being a
felon in possession of a gun, and with being a violent felon
in possession of body armor. While in pre-trial custody he
wrote letters to his cousin, telling her she could ignore a
grand jury subpoena, and asking her to swear that she put the
gun in his car without his knowledge.
unsuccessfully moved to suppress the body armor, arguing it
was discovered through an unconstitutional search. At
sentencing, the judge applied Guidelines enhancements for
using the body armor in connection with another felony
offense, and for attempting to obstruct justice.
McPhaul's Guidelines range was 24-30 months and the judge
imposed a 24-month sentence. McPhaul appeals.
Abuse of Discretion in Denying Motion to Suppress Body Armor
Fourth Amendment provides that "[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated." U.S. Const, amend. IV. Under certain
circumstances, evidence gathered in violation of a
defendant's Fourth Amendment rights will be suppressed.
See generally United States v. Martin, 807 F.3d 842,
845-46 (7th Cir. 2015). In reviewing the district judge's
denial of McPhaul's motion to suppress, we review legal
conclusions de novo and findings of fact for clear error.
United States v. Jackson, 598 F.3d 340, 344 (7th
a general matter, the decision to stop an automobile is
reasonable where the police have probable cause to believe
that a traffic violation has occurred." Whren v.
United States, 517 U.S. 806, 810 (1996); Carmichael
v. Vill. of Palatine, 605 F.3d 451, 456 (7th Cir. 2010).
The district court wrote that "Officer Sell observed Mr.
McPhaul commit two, and possibly three, traffic infractions,
and after running his license plate (which is a reasonable
practice of police officers), learned that the car was
registered to [a] driver with a suspended license. Officer
Sell had probable cause to initiate a traffic stop." We
McPhaul did not stop right away. Instead, as the district
court wrote, "After Officer Sell turned on his police
lights and siren, Mr. McPhaul did not immediately stop but
instead traveled for nearly a mile and made four turns before
finally coming to a stop in a gas station parking lot. These
facts are sufficient probable cause for an arrest for
resisting law enforcement in a vehicle." Again, we
agree. Under Indiana law, it is a felony to use a vehicle to
flee from a law-enforcement officer who has activated his
lights and siren in an attempt to make a stop. See
Ind. Code §§ 35-44.1-3-1 (a)(3), (b)(1)(A). Because
our focus is on probable cause, McPhaul's
argument that he was not, in fact, resisting law
enforcement-he was only trying to get to a safe place before
stopping-is legally irrelevant. E.g., United States v.
Reaves,796 F.3d 738, 741 (7th Cir. 2015) ...