Case: 20-10470 Document: 00515768243 Page: 1 Date Filed: 03/05/2021
REVISED
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 4, 2021
No. 20-10470
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Phillip Reed,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CR-194-2
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Phillip Reed was convicted by a jury of possession of a firearm by a
convicted felon, possession with intent to distribute a controlled substance,
and conspiracy to possess with intent to distribute a controlled substance,
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-10470 Document: 00515768243 Page: 2 Date Filed: 03/05/2021
No. 20-10470
and was sentenced within the advisory guidelines range to a total of 188
months of imprisonment and a five-year term of supervised release. He raises
multiple issues on appeal.
Reed first contends that the district court violated his rights under the
Confrontation Clause by excluding him during a particular witness’s
testimony at the suppression hearing. 1 “The Sixth Amendment guarantees
a defendant the right to be confronted with the witnesses against him.”
United States v. Daniels, 930 F.3d 393, 405 (5th Cir. 2019) (internal quotation
marks and footnote omitted). “One of the most basic rights guaranteed by
the Confrontation Clause is the right to be present in the courtroom at every
stage of the trial to confront one’s accusers, but this is not an absolute right.”
United States v. De Los Santos, 810 F.2d 1326, 1333-34 (5th Cir.) (internal
citation omitted), reh’g en banc denied, 819 F.2d 94 (5th Cir. 1987).
“[A]lthough the Sixth Amendment right to confront is a trial right, it also
applies to suppression hearings.” Daniels, 930 F.3d at 405. Our review is de
novo, subject to a harmless error analysis. See id.
We have previously found no Confrontation Clause violation when
the defendant was excluded from the in camera portion of a pretrial
suppression hearing concerning the identity of an informant. See De Los
Santos, 819 F.2d at 95-98. We noted that the evidence heard during the
portion of the hearing from which the defendant was excluded “did not differ
greatly from that expressed on the record,” that the defendant was present
for the remainder of the hearing, and that he “had no restriction on his ability
to cross-examine any witness.” Id. at 97.
While Reed, unlike De Los Santos, knew the identity of the witness, a
defendant’s history of violence and potential for future violence can be
1
This witness will not be referred to by name in this opinion.
2
Case: 20-10470 Document: 00515768243 Page: 3 Date Filed: 03/05/2021
No. 20-10470
relevant to the Confrontation Clause analysis. See De Los Santos, 810 F.2d at
1332-33. There were concerns about this witness’s safety. There was little,
if any, distinction between the testimony of this witness versus the content
of their written declaration and what two law enforcement witnesses testified
to, all of which Reed observed or had access to. Only Reed, not his attorney,
was excluded from the portion of the suppression hearing during which the
witness testified, counsel fully cross-examined the witness, and counsel was
able to consult with Reed before doing so. Reed had some idea of what the
witness would testify to because the Government previously submitted their
written declaration. Given this, Reed’s Confrontation Clause rights were not
violated. See De Los Santos, 819 F.2d at 95-98.
Reed next contends that the district court erred by denying his motion
to suppress evidence found at his residence and his subsequent statements to
law enforcement, as the Government failed to establish that the witness had
the apparent authority to consent. “It is well-established that warrantless
searches violate the Fourth Amendment unless they fall within a specific
exception to the warrant requirement,” one of which is consent. United
States v. Iraheta, 764 F.3d 455, 462 (5th Cir. 2014) (internal quotation marks
and citation omitted). Relevant here, to utilize the consent exception, the
Government must demonstrate that consent was given “by a party with . . .
apparent authority.” United States v. Scroggins, 599 F.3d 433, 440 (5th Cir.
2010). To do so, “there must be a finding that the searching officers
reasonably (though erroneously) believe[d] that the person who has
consented to their search had the authority to so consent.” Iraheta, 764 F.3d
at 463 (internal quotation marks and citation omitted). “When reviewing a
denial of a motion to suppress evidence, we review factual findings for clear
error and the ultimate constitutionality of law enforcement action de novo.”
United States v. Aguilar, 973 F.3d 445, 448 (5th Cir. 2020) (internal quotation
3
Case: 20-10470 Document: 00515768243 Page: 4 Date Filed: 03/05/2021
No. 20-10470
marks and citation omitted), cert. denied, 2021 WL 78367 (U.S. Jan. 11, 2021)
(No. 20-6265).
The record supports the finding of apparent authority based on law
enforcement’s reasonable belief that the witness had the authority to
consent. They were aware of this witness’s presence at the residence prior
to the search, their ongoing relationship with Reed, the use of the residence
as their address on police documents, and their affirmation that they resided
at the address. See Iraheta, 764 F.3d at 463. As there is no error in the denial
of Reed’s motion to suppress the search of his residence, we need not
consider his argument that his statements should be excluded as the fruit of
the poisonous tree.
Reed’s remaining arguments concern evidentiary objections as to
portions of the testimony by two law enforcement witnesses, none of which
has merit, and a claim that the cumulative effect of the errors warrants
reversal. “[T]he cumulative error doctrine necessitates reversal only in rare
instances . . . [and i]ts application is especially uncommon where, as here, the
government presents substantial evidence of guilt.” United States v. Delgado,
672 F.3d 320, 344 (5th Cir. 2012). Given the strength of the Government’s
case against Reed, it cannot be said that the cumulation of any trial errors “so
fatally infect[ed] the trial that they violate[d] the trial’s fundamental
fairness.” United States v. Stephens, 571 F.3d 401, 412 (5th Cir. 2009).
AFFIRMED.
4