U.S. v. Moses, 07-4508.

Decision Date02 September 2008
Docket NumberNo. 07-4508.,07-4508.
Citation540 F.3d 263
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Covonti Kwa MOSES, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: John A. Dusenbury, Jr., Office of the Federal Public Defender, Greensboro, North Carolina, for Appellant. David Paul Folmar, Jr., Office of the United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: Louis C. Allen, Federal Public Defender, Greensboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Greensboro, North Carolina, for Appellee.

Before NIEMEYER, KING, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge KING joined. Judge GREGORY wrote an opinion concurring in part and dissenting in part.

OPINION

NIEMEYER, Circuit Judge:

Following searches of two residences associated with Covonti Kwa Moses in Greensboro, North Carolina, police officers recovered illegal drugs and firearms. Moses pleaded guilty to possession with intent to distribute more than five grams of crack cocaine and to being a felon in possession of a firearm and was sentenced to 262 months' imprisonment. With the agreement of the court, Moses reserved the right to appeal the district court's denial of his motion to suppress, challenging the searches as unconstitutional.

Moses contends on appeal that the police officers' warrantless entry into the two residences was unsupported by probable cause and exigent circumstances, as claimed by the officers, and therefore violated his Fourth Amendment right to be free from unreasonable searches. Finding his arguments unpersuasive in the particular circumstances of this case, we affirm.

I

In May 2006, the Tactical Special Enforcement Team of the Greensboro, North Carolina police department commenced an investigation of a local street gang known as the "Goodfellas," which was suspected of involvement in drug trafficking, several shootings, and other related violent crimes. A month later, the officers apprehended the leader of the gang, Carl Kotay Graham, who provided the officers with substantial information about the gang's activities and named Moses among its members.

Graham told officers that Moses, who was already well known to the officers from previous encounters, served as "an enforcer-type person for the group ... who carried guns" and who "stash[ed] cocaine and firearms" at a residence on Cedar Street in Greensboro, "a cream-colored duplex." Graham also told the officers that Moses drove a "green Lincoln with temporary tags." Finally, he said that Moses had firearms and a ballistic vest in the house, as well as cocaine that he stashed for both Graham and another member of the Goodfellas gang.

When a Greensboro police officer thereafter observed a green Lincoln with temporary tags in front of 407 North Cedar Street, he alerted Officer Eric Goodykoontz, who visited the location and confirmed the fact. At Officer Goodykoontz's initiative, officers set up a "perimeter" in the area with the purpose of apprehending Moses.

While the perimeter was in place, Officer Goodykoontz observed Moses, whom he recognized from previous encounters, and a female emerge from unit A of 407 North Cedar Street. Moses was carrying what appeared to be shoe boxes, which he placed in the trunk of the Lincoln, and then the two returned to the house. Officer Goodykoontz could not, however, tell whether they entered unit A or unit B of 407 North Cedar Street. When Officer Goodykoontz ran a computer check on Moses, he discovered that Moses' driver's license was suspended. Shortly thereafter, Moses and his female companion returned to the Lincoln and drove away. Goodykoontz notified the other officers in the perimeter that Moses had left the premises and was driving on a suspended license.

Officers stopped Moses approximately one block from the Cedar Street residence. As Sergeant Tom Kroh approached the scene, he saw "Mr. Moses outside of the car, and he look[ed] like he [was] dialing his phone. He [was] doing something with his phone...." Sergeant Kroh asked Moses whom he was calling, and Moses replied that he was talking to his cousin, who lived in unit B of 407 North Cedar Street. When Moses explained that he had just left his cousin's house at 407-B North Cedar Street, Sergeant Kroh became concerned that Moses had alerted someone back at his Cedar Street residence about the traffic stop, and he ordered Moses to hang up the phone. The officers placed Moses under arrest for driving on a suspended license and found four grams of marijuana on his person. Sergeant Kroh advised Officer Goodykoontz, who had remained at the Cedar Street location, that he believed Moses may have alerted someone at the residence that the police had stopped him. Kroh then returned, with Moses in custody, to the Cedar Street residence.

Officer Goodykoontz knocked on the door of unit A, from which he had seen Moses emerge with the shoe boxes, but no one came to the door. The windows were blocked so that he could not see inside. At the same time, Sergeant Kroh and another officer knocked on the door of unit B, which was attached to unit A, and Catressa Moore came to the door. Moore admitted to the officers that Moses was her cousin, but she denied that he had just been visiting her, saying that he lived in unit A. Moore "further stated that she hated [Moses] and had nothing to do with him." Moore then began yelling and screaming at the officers, without provocation, creating such a loud commotion that Officer Goodykoontz heard it on the other side of the house while investigating unit A. Moore eventually gave consent to the officers to search her unit B to determine whether there was an interior access between the two units. The officers discovered none.

Officer Goodykoontz confronted Moses, who was inside a police vehicle in front of the Cedar Street residence, about his connection to unit A. Moses insisted that he had nothing to do with unit A and had been visiting his cousin in unit B. Because Goodykoontz had personally observed Moses come out of unit A, he and Sergeant Kroh decided to try Moses' keys to determine whether a key provided access to unit A. When a key fit the lock on unit A, the officers "felt like [they] had enough for a search warrant on the residence." Sergeant Kroh and Officer Goodykoontz, however, were concerned that someone might be inside of unit A in the process of destroying evidence and also presenting a threat to the safety of the officers as they waited outside the house for a search warrant. Their concern arose from Moses' behavior in making the phone call during the traffic stop, his cousin's behavior in creating a loud commotion, the presence of a gold-colored vehicle parked in front of the house, the officers' inability to see inside unit A, and Moses' false denial of association with that unit. Sergeant Kroh, Officer Goodykoontz, and two other officers therefore decided to enter unit A to secure the premises and any evidence therein while they obtained a search warrant.

During a protective sweep, the officers found no one inside unit A, but they observed, in plain view, residue that they field tested and identified as crack cocaine, as well as a marijuana cigarette butt and some photos of Moses on the dresser in the bedroom. They exited approximately three minutes after entering, leaving officers on the front porch to keep the unit secure.

Based on the total information that the officers had, including the statements given them by Graham, the officers obtained a search warrant and conducted a search of unit A, where they recovered, among other things, a .44 magnum revolver.

While at the scene at 407 North Cedar Street, Officer Goodykoontz received a call from another officer who had been interrogating Graham. Graham had said that "Moses was selling crack cocaine out of a residence on Pearson Street." Connecting that information with an anonymous CrimeStoppers tip earlier in the week, which complained of a black male subject driving a green Lincoln and selling crack cocaine at 1309 South Pearson Street, as well as the officers' subsequent observation of a green Lincoln at the same address, Sergeant Kroh and several officers took Moses' keys to 1309 South Pearson Street and found that one of them opened the door. Again concerned that "if anybody was inside ... they would be aware of [the officers'] presence," Sergeant Kroh authorized entry into the house. In a search that lasted less than a minute, the officers confirmed that no one was present in the home and observed in plain view digital scales and crack cocaine residue.

Based on the information obtained from 1309 South Pearson Street, as well as the information learned earlier, the officers also obtained a search warrant for 1309 South Pearson Street. Following a search of the residence, the officers recovered approximately 14 grams of crack cocaine.

Based on the crack cocaine found at the Pearson Street residence and the firearm found at the Cedar Street residence, Moses was indicted for possession with intent to distribute more than five grams of crack cocaine, in violation of 21 U.S.C. § 841(a) and § 841(b)(1)(B), and for possession of a firearm while being a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The indictment specified that Moses had previously been convicted of felony drug crimes in North Carolina courts in 2001 and 2002.

In a motion to suppress the evidence recovered during the searches of the two residences, Moses contended that the searches violated his constitutional rights because they were warrantless entries into houses where no exigent circumstances existed to justify an entry without a warrant. The district court denied Moses' motion. With respect to the Cedar Street residence, the court found that a reasonable officer could have believed that exigent circumstances existed,...

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