Weapons Frisk OK While Serving Civil Child Support Writ

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By Lance J. Rogers

Aug. 26 — Police executing a civil writ of attachment on a man who had disobeyed a court order to pay child support were authorized to search him for weapons under the search-incident-to-arrest exception to the Fourth Amendment, the U.S. Court of Appeals for the Eleventh Circuit ruled Aug. 23 ( United States v. Phillips, 2016 BL 273057, 11th Cir., No. 14-14660, 8/23/16 ).

The decision clarifies in a matter of first impression that writs enforcing civil orders related to contempt are equivalent to criminal arrest warrants for purposes of satisfying the restrictions in the Fourth Amendment.

Similar to Bench Warrant

The court rejected Ted Phillips's argument that the officers didn't have authority to arrest him for a civil matter because the Fourth Amendment says warrants may only issue if there is probable cause to believe a crime was committed.

“The Fourth Amendment does not require warrants to be based on probable cause of a crime, as opposed to a civil offense,” the court said in an opinion by Judge William H. Pryor Jr.

In any event, Florida courts don't issue civil writs of bodily attachment unless they find a person liable for civil contempt by a preponderance of the evidence, which is a more exacting standard of proof than probable cause, the court said.

The court said the writ of attachment here is analogous to a bench warrant, which instructs the police to pick people up to ensure that they appear in court.

“Because bench 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,” the court said.

The police found a gun in Phillips's pocket while detaining him on the writ of attachment and he was later convicted for being a felon in possession of a firearm.

Judges Jill A. Pryor and Richard W. Story, sitting by designation from the U.S. District Court for the Northern District of Georgia, joined the opinion.

The U.S. Attorney's Office, Miami, represented the government. The Federal Public Defender's Office, Miami, represented Phillips.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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