United States v. Bailey ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    3-20-2007
    USA v. Bailey
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 05-4356
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    Recommended Citation
    "USA v. Bailey" (2007). 2007 Decisions. Paper 1457.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1457
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
    No. 05-4356
    UNITED STATES OF AMERICA
    v.
    KAMAU A. BAILEY,
    Appellant
    On Appeal from the United States District Court
    for the Western District of Pennsylvania
    (D.C. No. 04-cr-00024)
    District Judge: Honorable Thomas M. Hardiman
    Submitted Under Third Circuit LAR 34.1(a)
    March 9, 2007
    Before: SLOVITER and AMBRO, Circuit Judges, and POLLAK,* District Judge
    (Filed March 20, 2007)
    OPINION
    ____
    *
    Hon. Louis H. Pollak, Senior Judge, United States District
    Court for the Eastern District of Pennsylvania, sitting by
    designation.
    SLOVITER, Circuit Judge.
    Appellant Kamau A. Bailey was convicted by a jury on June 22, 2005 of two
    counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. §
    922(g)(1). On appeal, Bailey contends that the District Court erred in denying his
    pretrial motions to suppress evidence resulting from allegedly illegal searches on May
    19, 2001 and January 1, 2003. He also contends that his arrest on January 1, 2003 was
    without probable cause, that his motion for severance on the two counts should have
    been granted, and that the statute he was charged under is unconstitutional. We will
    affirm.
    I.
    As we write primarily for the parties, we will discuss only those facts relevant to
    our analysis, which are taken from the state police officers’ testimony at the suppression
    hearings held prior to trial (testimony that did not differ substantially from that at trial).
    Count I of the indictment arises out of the events occurring on May 19, 2001. In the
    early morning hours of that day, Pittsburgh Police Lieutenant Kevin Kraus, who was on
    patrol duty in a marked police car, observed a vehicle with a burned-out headlight make
    a right turn and drift into his lane, causing him to swerve to avoid a head-on collision.
    He activated his lights and siren and attempted to pull the vehicle over. The sole
    occupant of the vehicle, later identified as Bailey, nevertheless continued to drive, with
    Kraus in pursuit.
    2
    After a chase of several blocks, Bailey stopped his car in the middle of the street,
    quickly exited the driver’s side of the vehicle, and began to run. Kraus chased Bailey on
    foot until Bailey leapt over a wall at the rear of a residential complex. Kraus radioed for
    assistance as he watched Bailey flee; other responding officers apprehended Bailey
    shortly thereafter. Kraus ran back to Bailey’s vehicle, with its engine still running, and
    removed the key and locked the door. Other officers remained with Bailey’s vehicle,
    while Kraus went to the location where Bailey was apprehended and identified Bailey as
    the offender who had run from him. The officers transported Bailey back to the scene.
    With other officers, Kraus returned to Bailey’s car parked in the middle of the
    street, and ordered a tow truck. Prior to the tow, the officers conducted an inventory
    search “pursuant to our police policy,” App. at 113, and found a loaded .45 caliber pistol
    in the trunk, as well as a number of bags of crack cocaine. Bailey, who had been advised
    of his Miranda rights and arrested, told Kraus that he had received the gun from a man
    “named Chris from Brookline,” and that the crack was for Bailey’s personal use.1 App.
    at 121.
    Count II of the indictment arises out of the events occurring approximately a year-
    and-a-half later. At quarter to two in the morning on January 1, 2003, Pittsburgh Police
    Officer Robert Kavals was on patrol with two other officers when he observed Bailey
    1
    At trial on cross-examination, Bailey testified that he had
    lied to Kraus and that the crack was actually for distribution
    purposes.
    3
    and another individual standing on the porch of an abandoned and boarded-up house in a
    high-crime area. Concluding that there was “really no reason for anybody to be hanging
    out there,” Kavals identified himself as a police officer and asked to speak with Bailey
    and the other individual. App. at 91. Bailey and the other individual began walking
    away from the officers, and Kavals saw Bailey throw a shiny object into the grass. As
    the other individual continued to walk away, the two other officers followed him; Bailey,
    however, turned around after tossing the object and returned to talk to Kavals.
    Kavals positioned himself so that he could see the object and identified it as a
    silver semi-automatic gun. As Bailey was a large individual, Kavals decided that he
    ought to “stall . . . [and] keep [Bailey] calm and relaxed” until the two other officers
    returned. App. at 93-94. He asked Bailey why he was in the area; Bailey replied that he
    had come to buy crack, and that he had smoked it all. Kavals also told Bailey he would
    simply check over the radio if there were any outstanding warrants for him and then
    permit him to leave. Once his back-up returned, Kavals then asked Bailey if he had a
    permit to carry a gun; in response, Bailey started to back up and said, “What gun? I don’t
    have a gun.” App. at 94. Following a six-minute struggle, Bailey was subdued. The
    officers recovered a .22 caliber semi-automatic Astra pistol from the grass, and a .22
    caliber bullet from Bailey’s right front pocket.
    Bailey had been charged and convicted in state court on drug offenses
    constituting a felony punishable by imprisonment in excess of one year, and thus his
    4
    possession of the guns recovered in May 2001 and in January 2003 was illegal. He was
    first indicted in federal court for being a felon in possession of a firearm in February
    2004.
    A grand jury in the Western District of Pennsylvania returned a second
    superseding indictment against Bailey on August 30, 2004, charging him with two
    counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§
    922(g)(1), 924(a)(2), and 924(e) based upon the May 19, 2001 and January 1, 2003
    incidents. Following motions made by Bailey and a December 24, 2004 initial
    suppression hearing, the District Court issued an opinion and order on February 14,
    2005, finding no grounds to suppress the May 19, 2001 inventory search of the car and
    the statements to Lieutenant Kraus. The Court also denied the request to suppress the
    gun and .22 caliber bullet found during the January 1, 2003 arrest. Bailey moved for
    reconsideration with respect to the May 19, 2001 search.
    At the second suppression hearing held April 25, 2005, Kraus testified that on
    May 19, 2001, he had followed the standardized search procedures of the Pittsburgh
    Police Department, which require that the entire contents of a vehicle be inventoried
    prior to a tow. Kraus further testified that, although he did not remember if he ever saw
    the department’s actual written order on inventory policy, which requires that all locked
    or sealed containers within a vehicle “be opened and inspected,” App. at 165, all the
    searches he had ever conducted were in keeping with the contents of that document, and
    5
    he was trained in accordance with such a policy. The District Court again denied the
    motion in an opinion and order issued May 13, 2005.
    Before the trial, Bailey filed a motion for severance of the two counts, which the
    District Court denied. It also rejected Bailey’s proposed jury instruction regarding the
    interstate commerce element of 18 U.S.C. § 922(g). At the jury trial, Bailey was
    convicted on both counts and was sentenced by the court to 235 months of
    imprisonment. He filed a timely appeal.
    II.
    We have jurisdiction under 28 U.S.C. § 1291. This court reviews the factual
    findings of a district court for clear error but exercises plenary review over the legality of
    the denial of a motion to suppress in light of the facts found. United States v. Riddick,
    
    156 F.3d 505
    , 509 (3d Cir. 1998). We review the denial of a motion for severance for
    abuse of discretion, United States v. Hart, 
    273 F.3d 363
    , 369 (3d Cir. 2001), and apply a
    plenary standard of review to questions regarding a statute's constitutionality. United
    States v. Randolph, 
    364 F.3d 118
    , 121 (3d Cir. 2004).
    III.
    A vehicle must have lawfully come into police custody before a warrantless
    vehicle inventory search may be conducted, United States v. Frank, 
    864 F.2d 992
    , 1001
    (3d Cir. 1988), and Bailey does not dispute that the police had such lawful custody of the
    car after he abandoned it in the middle of the street. Bailey argues, however, that the
    6
    examination of the contents of his vehicle violated the requirement that police must
    conduct their inventory search pursuant to standardized, routine practices. United States
    v. Salmon, 
    944 F.2d 1106
    , 1120 (3d Cir. 1991). As noted above, Lieutenant Kraus
    testified that he had followed the same inventory search procedure in this case as he had
    since he became a Pittsburgh police officer in 1993, that he had been trained to follow
    this procedure, and that the procedure that he followed was in accord with the written
    policy document produced by the police department. The District Court agreed and held
    that this inventory search was consistent with police procedures and the search was not
    unconstitutional.
    Bailey also argues that his arrest on January 1, 2003 was without probable cause.
    A warrantless arrest is “reasonable under the Fourth Amendment where there is probable
    cause to believe that a criminal offense has been or is being committed.” Devenpeck v.
    Alford, 
    543 U.S. 146
    , 152 (2004). “Whether probable cause exists depends upon the
    reasonable conclusion to be drawn from the facts known to the arresting officer at the
    time of the arrest.” 
    Id. Officer Kavals
    testified he saw Bailey throw an object from his pocket and begin
    to walk away from the scene upon the officers’ approach, that during their conversation
    he was able to see that the object was a gun, that Bailey told him he had bought and
    smoked crack in the high-crime area where their encounter took place, and that Bailey
    denied any awareness of the gun when asked if he had a permit. Such observations
    7
    supported probable cause to arrest in this case. Moreover, under the facts and
    circumstances of this case, the search of Bailey’s person that produced the .22 caliber
    bullet was incident to a lawful arrest. Chimel v. California, 
    395 U.S. 752
    , 763 (1969).
    Bailey also contends on appeal that joinder of the two counts under Rule 8 of the
    Federal Rules of Criminal Procedure was in error because of the factual differences
    between the two arrests, and that it was an abuse of discretion for the District Court to
    deny his motion for relief from prejudicial joinder under Rule 14. “[T]he choice of
    whether to sever . . . rests in the sound discretion of the district courts. Accordingly, we
    review a district court's denial of a motion to sever for abuse of discretion.” United
    States v. Lore, 
    430 F.3d 190
    , 205 (3d Cir. 2005). Even if a district court abuses its
    discretion in denying a motion to sever, a defendant must show “clear and substantial
    prejudice resulting in a manifestly unfair trial” to obtain a reversal. United States v.
    Console, 
    13 F.3d 641
    , 655 (3d Cir. 1993) (internal citations, quotation marks, and
    emphases omitted). Here, the District Court removed any potential prejudice with
    appropriate limiting instructions that assisted the jury in properly compartmentalizing the
    evidence for each charge. Bailey has not met his burden to demonstrate prejudice.
    Finally, Bailey asks that we preserve his challenge on appeal to 18 U.S.C. §
    922(g) as unconstitutional under the Commerce Clause in the event of en banc or
    Supreme Court review. As he recognizes, his argument was raised and rejected in
    United States v. Singletary, 
    268 F.3d 196
    (3d Cir. 2001), and it is settled that, absent
    8
    intervening authority, a panel cannot disturb prior precedent of this court. Reich v. D.M.
    Sabia Co., 
    90 F.3d 854
    , 858 (3d Cir. 1996).
    IV.
    We see no error in any of the challenged rulings of the District Court. For all of
    the above reasons, we will affirm the judgment of conviction and sentence.
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