United States v. Derrick Phillips , 914 F.3d 557 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1372
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. 03-CR-30019—Sue E. Myerscough, Judge.
____________________
ARGUED NOVEMBER 6, 2018 — DECIDED JANUARY 28, 2019
____________________
Before WOOD, Chief Judge, and EASTERBROOK and KANNE,
Circuit Judges.
WOOD, Chief Judge. In this appeal, Derrick Phillips is chal-
lenging the district court’s decision to revoke his supervised
release. He argues that the drug evidence used against him
was the fruit of an unconstitutional search and should have
been excluded. Guided by the Supreme Court’s opinion in
Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357
(1998), which held that the exclusionary rule does not apply
2 No. 18-1372
to state parole-revocation hearings, the district court ruled
that the exclusionary rule was similarly inappropriate for su-
pervised-release-revocation hearings. The court then re-
viewed the evidence presented by the government and con-
cluded that Phillips’s supervised release should be revoked
and that he should be sentenced to 36 months’ imprisonment.
Before this court, Phillips contests only the district court’s rul-
ing on the exclusionary rule issue. We affirm.
In 2010 Phillips began serving an eight-year term of super-
vised release stemming from a 2003 conviction for possession
of cocaine base with intent to distribute. Phillips completed
seven years of his term largely without incident. But on Octo-
ber 4, 2017, police officers in Quincy, Illinois, stopped him as
he drove his car out of the parking lot of the town’s Amtrak
station. After a dog alerted the officers that drugs might be
present in the car, they conducted a search, discovered a pack-
age containing approximately 196 grams of heroin, and ar-
rested Phillips for possession with intent to distribute. The
next month, Phillips’s probation officer filed a petition to re-
voke his supervised release based on his violation of the con-
dition that he not commit any crimes while on release.
In the district court, Phillips moved to suppress the evi-
dence seized from his car. He alleged that the putative traffic
violation that served as the basis of the stop was not, in fact, a
violation of any traffic law at all. Accordingly, he argued, the
police lacked probable cause for the stop and the resulting ev-
idence should be suppressed. The district court did not reach
the merits of this argument because it concluded that the rea-
soning in Scott left no room for the application of the exclu-
sionary rule to supervised-release-revocation hearings. We
agree with that ruling.
No. 18-1372 3
As the district court noted, two of the Supreme Court’s ra-
tionales for declining to extend the exclusionary rule to the
parole context “equally appl[y] to hearings for the revocation
of supervised release.” First, the Court expressed concern in
Scott that the exclusionary rule would “alter the traditionally
flexible, administrative nature of parole revocation proceed-
ings.” 524 U.S. at 364. Phillips contends that certain features
of hearings for the revocation of supervised release make
them more adversarial and trial-like than is true for parole
hearings. These include the statutory right to counsel that de-
fendants enjoy pursuant to Federal Rule of Criminal Proce-
dure 32.1 and the requirement that defendants make specific
objections in order to preserve them for appellate review, see
United States v. Raney, 797 F.3d 454, 462 (7th Cir. 2015).
We can assume that Phillips is correct to observe that the
Supreme Court’s description of parole revocation hearings as
“nonadversarial,” Scott, 524 U.S. at 366, is an imperfect fit for
supervised-release-revocation hearings (and for that matter,
parole hearings). But the Court was well aware that the pa-
role-revocation procedures are a part of the overall criminal
justice process. And there is no escaping the fact that a hear-
ing to determine whether supervised release should be re-
voked is substantially closer in form and substance to a hear-
ing focusing on parole revocation than it is to a criminal trial.
The Court emphasized in Scott that it has “repeatedly de-
clined to extend the exclusionary rule to proceedings other
than criminal trials.” 524 U.S. at 363. In other non-criminal-
trial procedural contexts that have adversarial qualities and
carry significant risks for defendants, the Court has found
that the exclusionary rule is not worth the “substantial social
costs” that would accompany it. Id., quoting United States v.
Leon, 468 U.S. 897, 907 (1984). See I.N.S. v. Lopez-Mendoza, 468
4 No. 18-1372
U.S. 1032 (1984) (holding the exclusionary rule inapplicable to
deportation proceedings); United States v. Janis, 428 U.S. 433
(1976) (holding the exclusionary rule inapplicable to civil tax
proceedings). Unless and until the Supreme Court reconsid-
ers this line of cases, we are not free to extend the exclusionary
rule to hearings for the revocation of supervised release.
Second, the Scott Court expressed skepticism about the
likelihood that the exclusionary rule would provide any
added deterrence of unlawful police behavior if it were to be
available in parole-revocation hearings, “because application
of the rule in the criminal trial already provides significant
deterrence of unconstitutional searches.” Scott, 524 U.S. at 364.
Phillips suggests that this is not so in the supervised release
context, given that the government has (and often uses) the
option to pursue revocation in lieu of a new prosecution. Thus,
he argues, the underlying police conduct may go unchal-
lenged in any forum. But the same option exists for parole-
revocation hearings. Statistics indicate that there are more
than 750,000 people on state parole, and another 137,000 on
federal supervised release. See Probation and Parole in the
United States, 2016, Bureau of Justice Statistics,
https://www.bjs.gov/content/pub/pdf/ppus16.pdf (2016 state
parole population of 760,392); Post-Conviction Supervision – Ju-
dicial Business 2017, United States Courts,
http://www.uscourts.gov/statistics-reports/post-conviction-
supervision-judicial-business-2016 (2016 federal supervisee
population of 137,410). In both instances, when the reason for
revocation is the commission of a new crime, the prosecuting
authority has the option to revoke a defendant’s parole or su-
pervised release rather than pursue a new case. If the Su-
preme Court found the added deterrence benefits insufficient
to justify the exclusionary rule in a parole hearing, logic
No. 18-1372 5
compels the conclusion that the same result must apply for
supervised release.
That is enough to dispose of Phillips’s appeal. We add,
however, that his position would require us seriously to un-
dermine our own circuit precedent and to break from the uni-
form consensus of our sister circuits. We have long held that
the exclusionary rule does not apply at sentencing. United
States v. Brimah, 214 F.3d 854 (7th Cir. 2000). And the Supreme
Court has held that in the context of supervised release,
“postrevocation penalties relate to the original offense,” Johnson
v. United States, 529 U.S. 694, 701 (2000) (emphasis added). See
also United States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir.
2015) (noting that “a revocation proceeding … focuses on the
modification of a sentence already imposed and implicates
the conditional (rather than absolute) liberty that the defend-
ant enjoys as a result of that sentence”). It is difficult to see
how we could continue to find the exclusionary rule inappro-
priate at the imposition of the initial sentence and yet to apply
the rule in downstream hearings aimed at modifying that sen-
tence.
Phillips argues that as a practical reality, when judges de-
cide whether to revoke supervised release and (if so) how
much prison time to impose, they are more focused on the
new offense than on the underlying crime of conviction. But
they are entitled to take the entire record into account at the
time of revocation, not simply the facts as they existed at the
time of the original sentence. That appears to be what hap-
pened for Phillips when the judge mentioned the ongoing
“heroin epidemic” as a justification for her sentence. And the
fact remains that as a legal matter, the Supreme Court has
made crystal clear that revocation relates back to, and is a
6 No. 18-1372
function of, the sentence for the original offense. Ruling for
Phillips would therefore call Brimah into question. As Phillips
acknowledges, his position would also put us in direct con-
flict with every other court of appeals to consider the ques-
tion. See United States v. Hebert, 201 F.3d 1103, 1104 (9th Cir.
2000) (holding exclusionary rule inapplicable to supervised
release); United States v. Armstrong, 187 F.3d 392, 394 (4th Cir.
1999) (same); see also United States v. Charles, 531 F.3d 637, 640
(8th Cir. 2008) (holding the exclusionary rule inapplicable to
supervised release in the absence of a showing of police har-
assment); United States v. Montez, 952 F.2d 854, 857 (5th Cir.
1992) (same). We decline to create such a split, nor need we
address the exceptions contemplated by the Fifth and Eighth
Circuits, as there has been no showing of harassment in this
case.
Phillips suggested at oral argument that the main purpose
of this appeal was to preserve this issue for Supreme Court
review. That he has done. But until the Supreme Court ad-
dresses the point, his arguments in this court are foreclosed.
The judgment of the district court is
AFFIRMED.