United States v. Mosley

Decision Date03 March 2014
Docket NumberNo. 13–3101.,13–3101.
Citation743 F.3d 1317
CourtU.S. Court of Appeals — Tenth Circuit
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Jermaine Lamar MOSLEY, Defendant–Appellant.

OPINION TEXT STARTS HERE

John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, KS, for DefendantAppellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, KS, for PlaintiffAppellee.

Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Jermaine Mosley entered a conditional guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He appeals the district court's denial of his motion to suppress the gun that was the basis of this offense. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

At about 3:00 a.m. on Friday, September 21, 2012, Wichita police officers received word from Sedgwick County 911 that two black males were handling a gun while sitting in a black Ford Focus parked in a Denny's parking lot. The 911 caller had identified himself as Brandon Jackson, but admitted that he himself had not seen the gun; rather another anonymous person told Jackson about the gun. Ultimately, the district court found this tip was anonymous as far as the police were concerned.

Two officers initially responded to the call. They pulled into a shopping center next to the Denny's. Only one black Ford Focus was in the Denny's parking lot. The officers then began to sneak up on the car from the front passenger's side with weapons drawn. When the officers were 25 to 30 feet from the car, they could see two black males inside. The officers then approached the car; one crossed in front of the car from the passenger's side over to the driver's side, and one remained on the passenger's side. With weapons raised, the officers caught the car's occupants off guard, shouting “Hands up, hands up, get your hands up.” The driver put his hands up immediately. Defendant (the passenger), however, did not. Although he hesitated briefly and appeared momentarily disoriented, Defendant quickly began making furtive motions with his right shoulder and arm that officers testified were consistent with trying to either hide or retrieve a weapon. In response, one of the officers began yelling louder and kicking the driver's door to shock Defendant into compliance. After ignoring repeated commands to put his hands up, Defendant eventually complied. After Defendant raised his hands, one of the officers re-holstered his weapon, opened the passenger's door, and ordered Defendant to exit the car. Defendant did not immediately comply or respond so the officer pulled him from the car, put him on the ground face-down, and handcuffed him. Another officer then took Defendant into custody.

After the two occupants had been detained, one of the officers advised the others (multiple officers were by now on the scene) that Defendant “dumped a gun under [the passenger's] seat.” Another officer then searched underneath the passenger's seat and found a black Ruger nine-millimeter handgun. Prior to recovering this gun, none of the officers had actually observed a gun.

A grand jury indicted Defendant on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Defendant moved to suppress the gun as the fruit of an unlawful search and seizure in violation of the Fourth Amendment. In ruling on Defendant's motion to suppress, the district court concluded (1) Defendant was first seized when police surrounded the car and shouted “hands up,” (2) this seizure was a Terry stop, and (3) Defendant had standing to challenge this initial seizure. Nevertheless, the court also concluded the officers possessed the requisite reasonable suspicion to justify the Terry stop and therefore the seizure did not violate Defendant's Fourth Amendment rights. The court thus denied Defendant's motion to suppress. On appeal, Defendant argues (1) he has standing to contest the lawfulness of the stop and to seek suppression of the gun found in the vehicle as the fruit of that unlawful stop, (2) the amount of force used by the officers to detain him rose to the level of a de facto arrest, and (3) neither the anonymous tip about the gun nor the totality of the circumstances justified his seizure.

II.

“When reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government, accept the district court's findings of fact unless clearly erroneous, and review de novo the ultimate determination of reasonableness under the Fourth Amendment.” United States v. Apperson, 441 F.3d 1162, 1184 (10th Cir.2006) (quoting United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir.2004)). We also review de novo the issue of whether a defendant has standing to challenge a search.” United States v. DeLuca, 269 F.3d 1128, 1131 (10th Cir.2001). Furthermore, “the key question here—when the seizure occurred—is a legal one that we must examine de novo.” United States v. Salazar, 609 F.3d 1059, 1064 (10th Cir.2010).

A.

We first address the issue of Defendant's standing to challenge the admissibility of the gun under the Fourth Amendment. Fourth Amendment rights are personal, and, therefore, ‘a defendant cannot claim a violation of his Fourth Amendment rights based only on the introduction of evidence procured through an illegal search and seizure of a third person's property or premises.’ United States v. DeLuca, 269 F.3d at 1131 (quoting United States v. Erwin, 875 F.2d 268, 270 (10th Cir.1989)). As such, “without a possessory or property interest in the vehicle searched, ‘passengers lack standing to challenge vehicle searches.’ Id. at 1132 (quoting United States v. Eylicio–Montoya, 70 F.3d 1158, 1162 (10th Cir.1995)). Even where a defendant lacks “the requisite possessory or ownership interest in a vehicle to directly challenge a search of that vehicle,” however, “the defendant may nonetheless contest the lawfulness of his own detention and seek to suppress evidence found in the vehicle as the fruit of the defendant's illegal detention.” Id. (internal marks and citations omitted). In DeLuca, the defendant conceded he did not have a possessory or property interest in the vehicle in which ... methamphetamine was found,” and we therefore held he “lack[ed] standing to directly challenge the search of the vehicle.” Id. Nevertheless, we concluded the defendant had standing “to contest the lawfulness of his own detention and to seek to suppress the methamphetamine as the fruit or derivative evidence of that illegal detention.” Id. To suppress evidence as the fruit of his unlawful detention, a defendant must show, first, that he was seized in violation of his Fourth Amendment rights and, second, that “a factual nexus” exists between his unlawful seizure and detention and the challenged evidence. Id. ‘Only if the defendant has made these two showings must the government prove that the evidence sought to be suppressed is not fruit of the poisonous tree.’ Id. (quoting United States v. Nava–Ramirez, 210 F.3d 1128, 1131 (10th Cir.2000)) (internal quotation marks omitted).

Like DeLuca, Defendant conceded he did not have a possessory or property interest in the vehicle in which the gun was found. He therefore lacks standing to challenge the search of the vehicle directly but does have standing to contest the lawfulness of his own seizure and seek to suppress the gun as the fruit of that seizure. This means he must show that the officers violated his Fourth Amendment rights when they seized him, and that a factual nexus existed between this unlawful seizure and the discovery of the gun under his seat.1

B.

We now address whether Defendant was seized in violation of his Fourth Amendment rights. We first explain that, by the time Defendant was seized within the meaning of the Fourth Amendment, the officers possessed the requisite reasonable suspicion to justify a Terry stop. We then address, and ultimately reject, Defendant's argument that the amount of force used by the officers transformed the interaction into a de facto arrest without probable cause. We therefore conclude Defendant's Fourth Amendment rights were not violated.

1.

In order to determine whether the officers violated Defendant's Fourth Amendment rights, [o]ur first task is to establish at what point in this encounter the Fourth Amendment becomes relevant.” Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Fourth Amendment provides, in part, [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....” U.S. Const. amend. IV. Defendant argues the gun should be suppressed as the fruit of his unlawful seizure, and so we must determine, “whether and when” the officers “seized” Defendant within the meaning of the Fourth Amendment. Terry, 392 U.S. at 16, 88 S.Ct. 1868. The parties do not dispute that Defendant was at some point seized during his interaction with the officers in the Denny's parking lot; but the parties do dispute when this seizure occurred. Defendant argues the officers seized him as soon as they surrounded the car with weapons raised shouting “hands up, hands up.” The Government responds, for the first time on appeal, that Defendant was not seized until he was physically pulled from the vehicle. The district court agreed with Defendant that he was first seized when the officers surrounded the car with weapons raised shouting “hands up.” This conclusion, however, was incorrect.2

In Terry, the Supreme Court stated that a seizure must be “justified at its inception.” 392 U.S. at 20, 88 S.Ct. 1868. More recently, the Supreme Court has clarified that “a police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there...

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