United States v. Moore
| Decision Date | 10 October 2014 |
| Docket Number | No. 13–4446.,13–4446. |
| Citation | 769 F.3d 264 |
| Court | U.S. Court of Appeals — Fourth Circuit |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Corey A. MOORE, Defendant–Appellant. |
ARGUED:Philip Urofsky, Shearman & Sterling LLP, Washington, D.C., for Appellant. James I. Pearce, United States Department Of Justice, Washington, D.C., for Appellee. ON BRIEF:Mark D. Lanpher, Bryan Dayton, Shearman & Sterling LLP, Washington, D.C., for Appellant. Mythili Raman, Acting Assistant Attorney General, Denis J. McInerney, Deputy Assistant Attorney General, Criminal Division, United States Department of Justice, Washington, D.C.; Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Sujit Raman, Chief of Appeals, Arun G. Rao, Assistant United States Attorney, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.
Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge GREGORY and Judge KEENAN joined.
After a five-day bench trial, the district court found defendant Corey Moore guilty of, among other things, violating 18 U.S.C. § 924(c) by possessing a firearm “in furtherance of” a crime of drug trafficking. On appeal, Moore challenges the denial of a motion to suppress evidence and the sufficiency of the evidence on the § 924(c) count. As to the Fourth Amendment claim, the motion to suppress should have been raised prior to trial. It was not so raised, and, as the district court found, it was thereby waived. We also find that there is ample evidence to support finding a nexus between the drug trafficking and the firearms under § 924(c) and therefore affirm the conviction.
When reviewing the facts of this case, we take them in the light most favorable to the government as the prevailing party below. United States v. Black, 707 F.3d 531, 534 (4th Cir.2013) ; United States v. Lomax, 293 F.3d 701, 705 (4th Cir.2002). Police officer Hubley was driving the streets of Takoma Park, Maryland, on September 25, 2010, when he observed Corey Moore walking down Sherman Avenue carrying a green bottle. Suspicious that the bottle might be “a bottle of Heineken beer or the like,” the officer turned around. J.A. 121. He radioed that he was going to conduct a stop and beckoned to Moore. Moore began to approach the police cruiser but turned and fled as the officer stepped out of the vehicle.
Officer Hubley pursued and eventually apprehended Moore. In the course of that pursuit, both the officer and two bystanders saw Moore run behind a dumpster and toss up a package. Though Moore and the officer continued running, that package was later recovered and found to contain a half kilogram of cocaine with a street value of over $10,000.
Two days later, officers responded to an attempted break-in at 118 Sherman Avenue in Takoma Park. Upon investigation, the officers found a broken window in the door to the basement apartment. The landlord informed the officers that the basement apartment was rented to “Corey Moore.” Based on the attempted burglary and Moore's arrest two days earlier with a half kilogram of cocaine, the officers obtained a search warrant for the apartment.1 In the apartment, the officers found 2.8 kilograms of phencyclidine (PCP) under the kitchen sink in a large pickle jar, a digital scale disguised as a CD case that tested positive for cocaine residue, open plastic bags, a bag of bottles of a sort used for drug distribution, approximately $45,000 in cash, and two handguns in the bedroom—an unloaded .44 caliber Desert Eagle pistol and a loaded .38 caliber Smith & Wesson revolver.2
A federal grand jury indicted Moore on four counts: (1) possession with intent to distribute a substance containing a detectable amount of cocaine in violation of 21 U.S.C. § 841(a)(1) ; (2) possession with intent to distribute one kilogram or more of PCP in violation of 21 U.S.C. § 841(a)(1) ; (3) possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) ; and (4) possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1).
The district court held a five-day bench trial, during which it heard from twenty government witnesses and six defense witnesses, including the defendant. Over four days into the trial and upon returning from a recess immediately before closing arguments, the defense moved for suppression of all tangible evidence on the grounds that Officer Hubley did not have reasonable suspicion to stop Moore on the street. Moore claimed that the stop constituted an illegal seizure under the Fourth Amendment that tainted all subsequent evidence. The district court denied the motion based on its “recollection of the evidence,” without briefing or argument from the government.
The district court summarized the testimony, made credibility findings, and announced the verdict. It repeatedly stated that it did not find the defendant's testimony and evidence to be credible. The court found Moore guilty on all four counts. At the sentencing hearing in May 2013, the court denied the motion for reconsideration of its suppression ruling on the grounds that Moore waived the claim by not raising it before trial as required by the Federal Rules of Criminal Procedure. Moore was sentenced to 271 months' imprisonment followed by five years of supervised release. A timely appeal of the denial of the suppression motion and of the § 924(c) conviction followed.
Moore contends that the district court did not find the motion to suppress evidence waived but rather ruled—incorrectly, in his view—on the merits that no Fourth Amendment violation had occurred. He argues that the officer lacked reasonable suspicion to stop him and seeks to suppress all evidence flowing from that initial stop, including items recovered during the search of the apartment—a search that, in his view, was not sufficiently attenuated from the earlier illegality. See Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).
The Federal Rules of Criminal Procedure require parties to raise motions to suppress evidence before trial. Fed.R.Crim.P. 12(b)(3)(C). The failure to file a suppression motion by the specified pretrial deadline operates as a waiver unless the court grants relief from the waiver “[f]or good cause.” Fed.R.Crim.P. 12(e). See United States v. Chavez, 902 F.2d 259 (4th Cir.1990).
The rule that motions to suppress are waived unless raised before trial or delayed for good cause is not just some procedural tripwire set to ensnare unwary defendants. Requiring parties to make suppression motions before rather than during or at the end of trial greatly reduces the risk that such motions may catch opposing litigants unprepared. Parties deserve to know at the beginning of trial, to the extent possible, what evidence is to be excluded or included. Often the evidence sought to be suppressed is so probative that if it is excluded, the indictment may be dismissed. By the same token, a defendant who knows what evidence will be admitted is better able to prepare his defense accordingly or, in many cases, to choose to enter a plea instead. Waiting until the end of trial deprives both sides of the opportunity to adequately prepare and make informed decisions about trial strategy based on the admitted evidence.
It is not only the litigants who are harmed by tardy suppression motions. Especially where a jury is involved, introducing such motions during trial, not to mention immediately before closing arguments, completely disrupts the rhythm of the proceedings. Trials move typically from presentations to arguments to instructions and deliberations, and suppression motions during this progression can come literally out of the blue. Evidence must be taken, and witnesses may need to be rounded up in order to properly determine whether suppression is required. It puts the fact finder—jury or judge—on unwanted hold until the suppression hearing is held.
Furthermore, by the time of closing arguments evidence has been introduced, including quite possibly the evidence the defendant seeks to suppress. If the trial court determines that the evidence should not have been introduced, it must ask the fact finder to “unring the bell” and ignore evidence it has heard that is in all likelihood highly prejudicial to the defendant. And inasmuch as jeopardy has attached, a ruling suppressing the evidence may effectively deprive the government of the right to appeal it. See 18 U.S.C. § 3731 (). For all of the above reasons, the pretrial filing of suppression motions is greatly to be desired.
Moore's attorney waited until immediately before closing arguments to move to suppress the evidence resulting from Moore's initial contact with Officer Hubley. During the sentencing hearing, when addressing the motion for reconsideration of the denial of the suppression motion, the district court repeatedly stated that the issue had been waived. Nevertheless, the defendant suggests that good cause existed because he knew information at the end of trial that he did not know at the beginning. He also argues that the district court implicitly found good cause because it found sufficient information on the record to rule on the suppression motion and then made some comments on the merits. Specifically, the court stated that there was no stop because the defendant fled upon seeing Officer Hubley step out of the car. See California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).
While we do not suggest that the district court's assessment of the merits was incorrect—quite the contrary—its comments in no way vitiated its waiver finding. The district court stated that the issue was waived, then made some cursory comments on the merits, after which it stated again that it found the issue...
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