               Case: 14-14660        Date Filed: 08/23/2016      Page: 1 of 16


                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 14-14660
                               ________________________

                         D.C. Docket No. 1:14-cr-20162-JAL-1


UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

TED PHILLIPS,
a.k.a. Duck,

                                                                       Defendant-Appellant.


                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                             _______________________

                                     (August 23, 2016)

Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and STORY,∗
District Judge.

WILLIAM PRYOR, Circuit Judge:

∗
  Honorable Richard W. Story, United States District Judge for the Northern District of Georgia,
sitting by designation.
              Case: 14-14660     Date Filed: 08/23/2016    Page: 2 of 16


      This appeal presents a question of first impression about the Fourth

Amendment: Can the police arrest someone based solely on a civil writ of bodily

attachment for unpaid child support? Ted Phillips appeals his conviction of being a

felon in possession of a firearm and an armed career criminal, 18 U.S.C.

§§ 922(g)(1), 924(e)(1). A police officer discovered Phillips’s firearm while

arresting him on a writ of bodily attachment, Fla. Fam. L.R.P. 12.615. Phillips

argues that the firearm should have been suppressed, but we disagree. Writs of

bodily attachment are “Warrants” within the meaning of the Fourth Amendment,

U.S. Const. Amend. IV, so the officer found the firearm during a valid search

incident to arrest. Phillips also argues for the first time on appeal that he does not

qualify for the 15-year mandatory minimum under the Armed Career Criminal Act,

but his arguments are both waived and foreclosed by precedent. We affirm.

                                 I. BACKGROUND

      In early 2014, Phillips was a wanted man. Police sought to question him

about a recent shooting in Miami and to arrest him for failing to pay child support.

In February, a Florida court issued a writ of bodily attachment for unpaid child

support that “ordered” the police to “take [Phillips] into custody . . . and confine

him[] in the county jail.” But the writ allowed Phillips to “purge this contempt and

be immediately released from custody at any time by the payment of the sum of

$300.00.” Two days later, the Miami-Dade Police Department issued a “Wanted



                                           2
              Case: 14-14660     Date Filed: 08/23/2016    Page: 3 of 16


for Questioning” flyer, which included Phillips’s name and picture and mentioned

the recent shooting and the writ of bodily attachment. The flyer instructed the

police to detain Phillips on sight.

      On March 1, Officer Nelson Rodriguez spotted Phillips on the same street

corner where the shooting had occurred. Officer Rodriguez knew about the flyer

and the writ of bodily attachment. As Officer Rodriguez approached Phillips to

arrest him, Phillips reached down toward his waistband. Fearing the worst, Officer

Rodriguez grabbed Phillips’s right hand and felt a metal bulge in his waistband.

Officer Rodriguez removed the bulge, which was a loaded .380 caliber firearm.

Phillips, a convicted drug dealer, was not allowed to have a firearm. A federal

grand jury indicted Phillips on one count of being a felon in possession of a firearm

and an armed career criminal, 18 U.S.C. §§ 922(g)(1), 924(e)(1).

      Phillips moved to suppress the firearm, but the district court denied his

motion. The district court concluded that a civil writ of bodily attachment is “no

different” from a criminal arrest warrant for purposes of the Fourth Amendment.

The district court ruled that Officer Rodriguez could arrest Phillips based on the

writ and recover the firearm as part of a search incident to arrest.

      After the district court denied his motion to suppress, Phillips conditionally

pleaded guilty. The plea agreement stated that Phillips “understands and

acknowledges that the Court . . . must impose a term of imprisonment of no less



                                           3
              Case: 14-14660     Date Filed: 08/23/2016    Page: 4 of 16


than the statutory minimum of 15 years.” But Phillips reserved his right to appeal

the denial of his motion to suppress.

      The probation office prepared a presentence investigation report, which

recommended that Phillips be sentenced to 15 years of imprisonment. When a

felon with three or more prior convictions for a “serious drug offense” is convicted

of possessing a firearm, the Armed Career Criminal Act imposes a mandatory

minimum sentence of 15 years. Id. § 924(e). The presentence investigation report

concluded that Phillips was an armed career criminal under the Act because he had

eight prior convictions for possessing cocaine with the intent to sell, Fla. Stat.

§ 893.13(1)(a). Phillips did not file any objections to the presentence investigation

report.

      At the sentencing hearing, the district court confirmed that Phillips had not

objected to the presentence investigation report. His lawyer responded, “That is

correct, your Honor.” His lawyer then told the district court, “We request a

sentence at 15 years, which is the minimum mandatory sentence.” “[A] 15-year

sentence is adequate to achieve all of the sentencing goals,” his lawyer argued,

“and we ask that the Court impose that sentence of 15 years.” The district court

agreed and sentenced Phillips to 15 years of imprisonment. After announcing his

sentence, the district court asked Phillips whether he had any objections. His




                                           4
              Case: 14-14660     Date Filed: 08/23/2016     Page: 5 of 16


lawyer responded, “No, your Honor,” except that Phillips planned to appeal the

denial of his motion to suppress.

                          II. STANDARDS OF REVIEW

      When the facts are undisputed, we review the legality of a search and the

legality of a sentence de novo. See United States v. Prevo, 435 F.3d 1343, 1345

(11th Cir. 2006); United States v. White, 980 F.2d 1400, 1401 (11th Cir. 1993).

                                  III. DISCUSSION

      Phillips raises two arguments on appeal. He argues that the district court

should have granted his motion to suppress the firearm and that the district court

should not have sentenced him as an armed career criminal. We address each

argument in turn.

          A. The District Court Correctly Denied the Motion to Suppress.
      Phillips argues that Officer Rodriguez had no authority to conduct a search

incident to arrest because he had no authority to arrest Phillips in the first place.

Phillips contends that a civil writ of bodily attachment is not equivalent to a

criminal arrest warrant for purposes of the Fourth Amendment. We disagree.

      The Fourth Amendment states, “The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be



                                           5
              Case: 14-14660    Date Filed: 08/23/2016    Page: 6 of 16


searched, and the persons or things to be seized.” U.S. Const. Amend. IV. The

amendment contains two main parts: the Reasonableness Clause, which prohibits

unreasonable searches and seizures, and the Warrants Clause, which requires

warrants to meet certain requirements. An arrest is a “seizure” of a “person,” so it

must comply with the Reasonableness Clause. Ashcroft v. al-Kidd, 563 U.S. 731,

735–36 (2011).

      To determine whether an arrest is reasonable, “we begin with history. We

look to the statutes and common law of the founding era to determine the norms

that the Fourth Amendment was meant to preserve.” Virginia v. Moore, 553 U.S.

164, 168 (2008). If history does not provide a conclusive answer, we apply the

“traditional standards of reasonableness ‘by assessing, on the one hand, the degree

to which [the arrest] intrudes upon an individual’s privacy and, on the other, the

degree to which [the arrest] is needed for the promotion of legitimate governmental

interests.’” Id. at 171 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).

      History resolves this appeal. The parties agree that the key question is

whether a writ of bodily attachment for unpaid child support is a warrant within the

meaning of the Fourth Amendment. Because history tells us that it is, Officer

Rodriguez had the authority to arrest Phillips.

      At the Founding, the presence of a valid arrest warrant made an arrest

reasonable. Under the common law, constables had broad inherent authority to



                                          6
              Case: 14-14660     Date Filed: 08/23/2016   Page: 7 of 16


arrest suspected criminals. See Atwater v. City of Lago Vista, 532 U.S. 318, 330–33

(2001); 4 William Blackstone, Commentaries on the Laws of England *289. Arrest

warrants broadened that authority even further by vesting constables with the

power of the justices of the peace. See Payton v. New York, 445 U.S. 573, 607–08

(1980) (White, J., dissenting); 1 James Fitzjames Stephen, A History of the

Criminal Law of England 189–91 (London, MacMillan & Co. 1883). Authority

mattered because, before the advent of the exclusionary rule in the 20th century,

the remedies for an illegal search or seizure were self-help and tort suits. See Utah

v. Strieff, 136 S. Ct. 2056, 2061 (2016). But an arrestee could not lawfully resist an

officer who had a valid arrest warrant. See Thomas Y. Davies, Recovering the

Original Fourth Amendment, 98 Mich. L. Rev. 547, 624–25 & nn.203–04 (1999).

And a valid arrest warrant was and remains today a complete defense to a tort suit

for false imprisonment. See Akhil Reed Amar, Fourth Amendment First Principles,

107 Harv. L. Rev. 757, 779 (1994); 3 Blackstone, supra, at *127; Rodriguez v.

Ritchey, 556 F.2d 1185, 1193 (5th Cir. 1977) (en banc).

      Precisely because warrants expanded an officer’s authority and eliminated

his tort liability, the Founding generation had concerns about them. The Founding

generation was all too familiar with “general warrants,” which allowed officers of

the King to “rummage through homes in an unrestrained search for evidence of

criminal activity.” Riley v. California, 134 S. Ct. 2473, 2494 (2014); see also



                                          7
              Case: 14-14660     Date Filed: 08/23/2016   Page: 8 of 16


William J. Stuntz & Andrew D. Leipold, Warrant Clause, in The Heritage Guide

to the Constitution 426, 427–28 (David F. Forte & Matthew Spalding eds., 2d ed.

2014). English courts eventually held that general warrants were illegal absent

legislative approval, see, e.g., Wilkes v. Wood, 98 Eng. Rep. 489 (1763); Entick v.

Carrington, 95 Eng. Rep. 807 (1765), and many early state constitutions banned

them outright, see, e.g., Md. Const. of 1776, Decl. of Rights, Art. 23; Mass. Const.

of 1780, Pt. 1, Art. 14.

      To ensure that the newly created Congress did not approve general warrants

in the future, the Founding generation ratified the Warrants Clause of the Fourth

Amendment. See Davies, supra, at 657–59. The Warrants Clause requires every

warrant to be particular, sworn, and supported by probable cause. See U.S. Const.

Amend. IV. A warrant is not valid, and it cannot render a search or seizure

reasonable, unless it satisfies these requirements.

      Phillips contends that civil writs of bodily attachment do not satisfy the

Warrants Clause. In Florida, a court will issue a writ of bodily attachment for

unpaid child support if it determines, by a preponderance of the evidence, that a

person is liable for civil contempt. See Fla. Fam. L.R.P. 12.615(c); Dep’t of

Children and Families v. R.H., 819 So. 2d 858, 861 n.3 (Fla. Dist. Ct. App. 2002);

In Interest of S.L.T., 180 So. 2d 374, 379 (Fla. Dist. Ct. App. 1965). Specifically,

the court must find “that a prior order directing payment of support was entered



                                          8
              Case: 14-14660     Date Filed: 08/23/2016   Page: 9 of 16


and that the alleged contemnor has failed to pay all or part of the support set forth

in the prior order.” Fla. Fam. L.R.P. 12.615(c)(1). Phillips contends that the Fourth

Amendment requires warrants to be based on probable cause of a crime, not

probable cause of a civil offense like contempt. He is mistaken.

      The Fourth Amendment does not require warrants to be based on probable

cause of a crime, as opposed to a civil offense. Nothing in the original public

meaning of “probable cause” or “Warrants” excludes civil offenses. At the

Founding, “probable cause” meant “made under circumstances which warrant

suspicion.” Locke v. United States, 11 U.S. 339, 348 (1813) (Marshall, C.J.). And

“warrant” meant “[a] Precept under Hand and Seal to some Officer to bring an

Offender before the Person granting it.” Warrant, A New Law Dictionary 768

(Giles Jacob ed. 1739); accord 2 Warrant, A New and Complete Law-Dictionary

766 (Timothy Cunningham ed. 1765); 2 Warrant, American Dictionary of the

English Language 904 (Noah Webster ed. 1828).

      Writs of bodily assistance for unpaid child support satisfy these definitions.

Florida courts issue the writ only after they find a person liable for civil contempt

by a preponderance of the evidence—a standard of proof that is higher than

probable cause, see United States v. Sokolow, 490 U.S. 1, 7 (1989). And a writ of

bodily attachment is a “warrant,” originally defined: it orders the contemnor’s




                                           9
             Case: 14-14660     Date Filed: 08/23/2016    Page: 10 of 16


arrest and “direct[s]” that he “be brought before the court.” Fla. Fam. L.R.P.

12.615(c)(2)(B).

      That a writ of bodily attachment is based on civil contempt, as opposed to a

crime, makes no difference. Civil warrants were common at the Founding and up

through the ratification of the Fourteenth Amendment. See, e.g., U.S. ex rel.

Deimel v. Arnold, 69 F. 987 (7th Cir. 1895) (writ of capias ad satisfaciendum);

Curry v. Johnson, 13 R.I. 121 (1880) (writ of replevin); Semayne’s Case, 77 Eng.

Rep. 194 (1604) (writ of replevin); Davies, supra, at 585 & n.94 (writ of

assistance); Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins,

Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83

Colum. L. Rev. 1365, 1370 (1983) (writ of assistance). Civil arrest warrants were

(and still are) subject to the same standards as criminal arrest warrants. See West v.

Cabell, 153 U.S. 78, 85–86 (1894).

      The closest historical analog to the writ of bodily attachment for unpaid

child support is the bench warrant. A bench warrant, or, more traditionally, a

“capias,” instructs the police to arrest someone to ensure that he appears in court.

See Capias (Capias Ad Respondendum), Black’s Law Dictionary (10th ed. 2014);

Warrant (Bench Warrant), Black’s Law Dictionary (10th ed. 2014). Courts have

long issued bench warrants after holding someone in contempt. See William

Waller Hening, The New Virginia Justice 570 (Richmond, Johnson & Warner, 2d



                                          10
             Case: 14-14660     Date Filed: 08/23/2016   Page: 11 of 16


ed. 1810); 4 Blackstone, supra, at *281–83. And the Federal Rules of Civil

Procedure today expressly contemplate bench warrants for “civil contempt of a

decree or injunction.” Fed. R. Civ. P. 4.1(b).

      This Court has held that arrests based on bench warrants satisfy the Fourth

Amendment, see Simon v. United States, 644 F.2d 490, 494 (5th Cir. 1981), and

our sister circuits agree with that proposition even when the bench warrant is based

on civil contempt. The Seventh Circuit has held that a bench warrant for failure to

pay child support does not present a problem under the Fourth Amendment.

Armstrong v. Squadrito, 152 F.3d 564, 569–70 (7th Cir. 1998). And the Second

Circuit has explained why bench warrants satisfy the probable-cause requirement

of the Warrants Clause:

      The decision of the [court] to issue a bench warrant constituted a
      finding made by a neutral magistrate that [the defendant] had failed to
      appear in a pending criminal matter. We recognize that its issuance
      did not amount to a judicial finding of probable cause to arrest in the
      traditional sense—with respect to the bank robberies (i.e., that a crime
      had been committed and that defendant had committed it).
      Nonetheless, the police, armed with the warrant, had authority to find
      and seize [the defendant] anywhere they could find him for his failure
      to appear in court. Thus, the presence of the police . . . was pursuant to
      a direction made by a neutral magistrate. Defendant’s rights under the
      Fourth Amendment require no more.

United States v. Spencer, 684 F.2d 220, 223 (2d Cir. 1982); accord United States v.

Gooch, 506 F.3d 1156, 1159 & n.1 (9th Cir. 2007); People v. Allibalogun, 727

N.E.2d 633 (Ill. App. Ct. 2000). We agree with our sister circuits. Because bench



                                          11
             Case: 14-14660     Date Filed: 08/23/2016   Page: 12 of 16


warrants and writs of bodily attachment for unpaid child support are virtually

indistinguishable, the long historical pedigree of the former convinces us that the

latter also passes constitutional muster.

      At oral argument, Phillips relied heavily on the decision of the Supreme

Court in Ashcroft v. al-Kidd, 563 U.S. 731 (2011), but that decision does not help

him. Al-Kidd involved the material-witness statute, which permits judges to issue

arrest warrants for witnesses whose testimony is “material in a criminal

proceeding” and whose presence cannot be practically secured by a subpoena. 18

U.S.C. § 3144. The majority opinion in al-Kidd speculated that material-witness

warrants might not be “Warrants” under the Fourth Amendment: “It might be

argued, perhaps, that when, in response to the English abuses, the Fourth

Amendment said that warrants could only issue ‘on probable cause’ it meant only

probable cause to suspect a violation of law, and not probable cause to believe that

the individual named in the warrant was a material witness.” 563 U.S. at 743; see

also id. at 745 (Kennedy, J., concurring). But the Court declined to resolve this

issue because al-Kidd had not raised the argument. See id. at 736, 740 & n.3

(majority opinion); id. at 744 (Kennedy, J., concurring). Because the Court did not

address the Warrants Clause in al-Kidd, that decision provides us no guidance.

Even if the Court had held that material-witness warrants are not warrants because

they are not based on “probable cause to suspect a violation of law,” id. at 743



                                            12
              Case: 14-14660     Date Filed: 08/23/2016     Page: 13 of 16


(majority opinion), that holding would not affect our decision here. Writs of bodily

attachment, like bench warrants, are based on “a violation of law”—namely, civil

contempt. Phillips’s reliance on al-Kidd is misplaced.

      We conclude that a writ of bodily attachment for unpaid child support is a

warrant for purposes of the Fourth Amendment. With possible exceptions not

relevant here, see Amar, supra, at 762 n.9, 780, an arrest based on a valid warrant

is per se reasonable. Accordingly, Officer Rodriguez could arrest Phillips based

solely on the civil writ of bodily attachment for unpaid child support. And because

Officer Rodriguez legally arrested Phillips, he could recover the firearm from

Phillips’s waistband as part of a search incident to arrest. See Birchfield v. North

Dakota, 136 S. Ct. 2160, 2174–76 (2016). The district court correctly denied the

motion to suppress.

      B. The District Court Correctly Sentenced Phillips as an Armed Career
                                      Criminal.

      Phillips contends that the district court should not have sentenced him as an

armed career criminal, despite his eight prior convictions for possessing cocaine

with the intent to sell, Fla. Stat. § 893.13(1)(a). Philips argues that four of his prior

convictions do not qualify under the Act because, in 2002, the Florida legislature

amended the offense to remove a mens rea element. Phillips argues that two of his

prior convictions do not qualify under the Act because adjudication was withheld.




                                           13
             Case: 14-14660     Date Filed: 08/23/2016    Page: 14 of 16


And he argues that none of his prior convictions qualify under the Act because

they were found by a judge, not a jury.

      Phillips concedes that he did not raise these arguments in the district court,

but he asks us to review them for plain error. The government responds that we

cannot review these arguments at all because Phillips waived them, as opposed to

merely forfeiting them. The government also contends that all three arguments are

foreclosed by precedent. We agree with the government.

      We start by clarifying the difference between waiver and forfeiture.

“Although jurists often use the words interchangeably,” Kontrick v. Ryan, 540 U.S.

443, 458 n.13 (2004), waiver and forfeiture are “not the same.” Freytag v.

Commissioner, 501 U.S. 868, 895 n.2 (1991) (Scalia, J., concurring in part and

concurring in the judgment). “[F]orfeiture is the failure to make the timely

assertion of a right[;] waiver is the ‘intentional relinquishment or abandonment of a

known right.’” Kontrick, 540 U.S. at 458 n.13 (second alteration in original)

(quoting United States v. Olano, 507 U.S. 725, 733 (1993)). When a defendant

forfeits an argument in the district court, we can review it for “plain error.” Fed. R.

Crim. P. 52(b). But when a defendant waives an argument in the district court, we

cannot review it at all because “no error” occurred in the first place. Puckett v.

United States, 556 U.S. 129, 138 (2009). “The defendant’s waiver is . . . a form of

consent that lifts a limitation on government action by satisfying its terms—that is,



                                          14
             Case: 14-14660     Date Filed: 08/23/2016    Page: 15 of 16


the right is exercised and honored, not disregarded.” Wellness Int’l Network, Ltd. v.

Sharif, 135 S. Ct. 1932, 1962 (2015) (Thomas, J., dissenting).

      Phillips waived his right to argue that he is not an armed career criminal.

Phillips pleaded guilty to violating the Armed Career Criminal Act, and his plea

agreement stated that he “understands and acknowledges that the Court . . . must

impose a term of imprisonment of no less than the statutory minimum of 15 years.”

At the sentencing hearing, his lawyer affirmatively asked the district court to

sentence him to 15 years under the Act. And when the presentence investigation

report stated that Phillips had eight qualifying convictions, Phillips chose not to

object. We have held that defendants waived their challenges to their sentences in

similar circumstances. See, e.g., United States v. Love, 449 F.3d 1154, 1157 (11th

Cir. 2006); United States v. Bennett, 472 F.3d 825, 833–34 (11th Cir. 2006). Based

on his conduct in the district court, Phillips cannot argue on appeal that he is not an

armed career criminal.

      Even if Phillips had not waived his arguments, all three are foreclosed by

precedent. First, we have held that possessing cocaine with the intent to sell is a

“serious drug offense” even though the Florida legislature removed a mens rea

element in 2002. See United States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014).

Second, we have held that a Florida conviction qualifies under the Act even if

adjudication was withheld. See United States v. Santiago, 601 F.3d 1241, 1245



                                          15
             Case: 14-14660    Date Filed: 08/23/2016   Page: 16 of 16


(11th Cir. 2010); accord Clarke v. United States, 184 So. 3d 1107, 1113–14 (Fla.

2016). Third, the Supreme Court has held that prior convictions can be found by a

judge, instead of a jury. See Almendarez-Torres v. United States, 523 U.S. 224,

247 (1998). Phillips concedes that these precedents have not been overruled.

                               IV. CONCLUSION

      We AFFIRM Phillips’s conviction and sentence.




                                        16
