40 F.3d 688 (4th Cir. 1994), 93-5091, United States v. Mobley

Docket Nº:93-5091.
Citation:40 F.3d 688
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Delbert MOBLEY, Defendant-Appellant.
Case Date:November 23, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 688

40 F.3d 688 (4th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Delbert MOBLEY, Defendant-Appellant.

No. 93-5091.

United States Court of Appeals, Fourth Circuit

November 23, 1994

Argued April 14, 1994.

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ARGUED: James Christopher Savage, Rockville, MD, for appellant. Andrew Gerald McBride, Asst. U.S. Atty., Alexandria, VA, for appellee. ON BRIEF: Helen F. Fahey, U.S. Atty., Marcus J. Davis, Asst. U.S. Atty., Alexandria, VA, for appellee.

Before ERVIN, Chief Judge, SPROUSE, Senior Circuit Judge, and HARVEY, Senior United States District Judge for the District of Maryland, sitting by designation.

Affirmed by published opinion. Chief Judge ERVIN wrote the opinion, in which Senior Judge SPROUSE joined. Senior Judge HARVEY wrote a concurring opinion.

OPINION

ERVIN, Chief Judge:

Delbert Mobley was indicted under 18 U.S.C. Sec. 922(g)(1) as a felon in possession of a firearm. His suppression motions failed, his case proceeded to trial and he was convicted. The government moved to have him sentenced as a career criminal under 18 U.S.C. Sec. 924(e). While the court was reluctant to give such a sentence on the facts of the case, believing it had no choice because the facts fit the statute, it sentenced Mobley to the mandatory minimum of 15 years in prison. Mobley now appeals on both the suppression matter and the construction of the armed career criminal provision. For the reasons set forth below, we affirm.

I.

On December 5, 1990, at approximately 8:30 a.m., FBI special agents arrived at Mobley's apartment in Falls Church, Virginia with arrest and search warrants. The arrest warrant charged Mobley with conspiracy to distribute crack cocaine in violation of 21 U.S.C. Sec. 846. According to the government, both warrants were supported by wiretap evidence and statements of confidential informants indicating that Mobley was involved in a large-scale crack cocaine distribution ring centered in Baltimore.

The FBI personnel at the scene were approximately eight, two to arrest Mobley, and five or six to execute the search of the premises. An agent knocked on Mobley's door, and he responded from within. The agent identified himself and indicated that he had a warrant for Mobley's arrest. Mobley opened the door, and as he did so one of the agents secured him against the wall while the others made a security sweep of the apartment to see that there was no one else present. Once they determined that Mobley was alone, the officers seemed to relax. Mobley had answered the door naked, and it was quite apparent that he was unarmed. Deborah Martin, one of the special agents assigned to arrest Mobley, advised him that he was under arrest. He then went into the other room, apparently under surveillance, and got dressed. After he returned to the living room area, Martin read him his Miranda rights. Mobley indicated that he understood his rights, and that he wished to speak to a lawyer.

The detail of what happened next is not exact. At the suppression hearing, Martin indicated, vaguely, that after this point,

there was general conversation [impliedly with Mobley] about leaving the apartment, and I also asked him if there was anything in the apartment and specifically any weapons that were in the apartment that could be of danger to the agents who

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would be remaining at the apartment to conduct the search warrant.

J.A. 36 (emphasis supplied). At trial, Martin was more precise:

I told him, again, we would be leaving the apartment because he was under arrest, and I indicated that there would be people there who would stay and conduct a search warrant of his place. At that time I asked him if there was anything in the apartment that could be of danger to the agents who would be staying to conduct the search warrant, such as a weapon.

J.A. 101. In response to the question, Mobley stated that there was a weapon in the bedroom closet on one of the shelves, and he led the agents to it.

Mobley eventually was indicted on two counts involving drugs in the District of Maryland, and proceeded to trial on November 4, 1991. He was acquitted on both counts on April 10, 1992. Having lost the first round, the government came back for a second round. On July 22, 1992, the Grand Jury for the Eastern District of Virginia returned an indictment in one count against Mobley, charging him as a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). Mobley filed a number of pretrial motions, including a motion to suppress for violation of Miranda v. Arizona and its progeny based on Martin's question as to whether there were any dangerous devices or guns in the house following Mobley's election to claim his right to counsel. The motion was denied, under the reasoning that the question fell within the "public safety exception" enunciated in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984).

Mobley went to trial on the felon in possession charge and was convicted. Having provided proper notice, the government moved to have Mobley sentenced under the armed career criminal provision of 18 U.S.C. Sec. 924(e)(1). Application of this sentence enhancement provision was based on Mobley's three prior felony convictions in the District of Columbia under its broad "robbery" statute, D.C.Code Sec. 22-2901. The third of these convictions was essentially a pickpocketing offense, and Mobley argued that it did not fit the statutory definition of a violent felony. The district court rejected the approach urged by Mobley (and adopted by the D.C.Circuit) in a published opinion, United States v. Mobley, 818 F.Supp. 164 (E.D.Va.1993), and sentenced him to the mandatory minimum of 15 years.

II.

A.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court established a prophylactic procedural shield to support every citizen's Fifth Amendment right against compelled self-incrimination. Part of this shield is the requirement that, prior to any custodial interrogation, the police advise the individual that he has the right to remain silent and the right to the presence of an attorney. Id. at 479, 86 S.Ct. at 1630. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Court held that, where a person subject to the Miranda requirements claims his right to speak to an attorney, the accused

is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police.

Id. at 484-85, 101 S.Ct. at 1884-85. In the present case, it is clear that Mobley had exercised his right to speak to an attorney prior to Martin's questioning regarding the presence of a weapon on the premises, and that, absent some exception, the rule of Edwards would require a court to suppress this statement. In response, the prosecution argues that there is an applicable "public safety" exception to the rule of Edwards. This is a question of first impression in this circuit.

In New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), two police officers on patrol encountered a woman who stated that she had just been raped by a man with a gun, and that he had gone into a nearby grocery store. The police entered the store and saw a man fitting the suspect's description approaching the check-out counter. When the suspect saw the police, he

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dropped his items and fled into the aisles. When he was caught and frisked, it was discovered that he had an empty shoulder holster. Before he was advised of his Miranda rights, the police asked him where the gun was, and he indicated to them where he had put it.

The Supreme Court acknowledged that this questioning violated Miranda, but went on to carve out an exception to the Miranda rule.

The police, in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.

Id. at 657, 104 S.Ct. at 2632. The Court recognized that the administration of the Miranda warnings in this situation might deter some people from answering. It reasoned that, while...

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