United States v. Tyrone Bentley , 528 F. App'x 247 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-3378
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UNITED STATES OF AMERICA
v.
TYRONE BENTLEY,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 10-cr-00525-001)
District Judge: Honorable Paul S. Diamond
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Submitted Under Third Circuit LAR 34.1(a)
June 13, 2013
Before: SCIRICA, HARDIMAN and ALDISERT, Circuit Judges.
(Filed: June 14, 2013)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Appellant Tyrone Bentley was convicted by a jury in the Eastern District of
Pennsylvania of conspiracy to commit armed bank robbery in violation of 18 U.S.C.
§ 371, armed bank robbery and aiding and abetting in violation of 18 U.S.C. §§ 2113 and
2, and using and carrying a firearm during and in relation to a crime of violence and
aiding and abetting in violation of 18 U.S.C. §§ 924(c) and 2. He argues that the District
Court erred in denying his motion to suppress physical evidence and that the verdict
against him was supported by insufficient evidence. For the reasons that follow, we will
affirm.
I
On July 3, 2010, Bentley and an accomplice entered the Wachovia Bank in
Trevose, Pennsylvania wearing masks and gloves. Bentley carried a taser and a pink
pillowcase, and his accomplice carried a firearm. Bentley‘s accomplice grabbed the bank
manager and held him at gunpoint by the front door, while Bentley jumped over the
counter.
Once behind the counter, Bentley threatened the tellers with his taser and ordered
them to open their cash drawers. He walked down the teller line, taking money and
stuffing it into his pillowcase. Some of the money was wrapped with paper straps, which
were labeled with the bank‘s name, the date, the bank‘s branch number, the teller number,
and the initials of the teller from whose drawer the money was taken. Bentley also took
bait bills.
Bentley and his accomplice then ran out of the bank, jumped into a silver Dodge
Caravan minivan with dents on both sides, and drove away. Bentley nearly struck a bus
while pulling out of the parking lot. At a nearby red light, the driver of the bus pulled up
2
next to the minivan and observed that Bentley and his accomplice were wearing hoods,
gloves, and masks. The bus driver called the police and reported that the minivan was
driving south on Route 1. This information was broadcast over police radio.
Pennsylvania State Trooper Justin Oliverio overheard the transmission and
proceeded south on Route 1. Within three or four minutes, he saw a silver minivan. As
Trooper Oliverio traveled alongside the minivan, he observed the driver—a black male
with facial hair, whom he later identified as Bentley—for about three to five seconds.
The minivan then drove across the grass median of the highway and sped away.
Trooper Oliverio, joined by Bensalem Township police officer John Domanico,
chased the minivan at speeds up to 84 miles per hour. The officers briefly lost sight of
the minivan when it turned into a residential neighborhood in Northeast Philadelphia, but
relocated it soon thereafter. It was parked about three blocks away from the street where
the officers had last seen it, it was missing its license plate, and the driver and the
passenger were gone.
Another police officer, Michael Sheehy, had also responded to the report of the
robbery and was searching the Northeast Philadelphia neighborhood for the suspects. He
saw Bentley walking down the sidewalk a short distance from the parked minivan.
Sheehy observed Bentley reaching toward the front left side of his waistband, and was
concerned that he might be carrying a gun. He ordered Bentley to show him his hands,
and Bentley began to run. Sheehy, joined by several other officers, pursued him. Bentley
3
was eventually grabbed by a police officer but continued to struggle, punching and
kicking at the officers and shouting obscenities. Once Bentley had been subdued,
Trooper Oliverio arrived at the location and positively identified him as the driver of the
silver minivan. Trooper Oliverio also identified the parked minivan as the van involved
in the chase.
After Bentley‘s arrest, Philadelphia police officers continued to search for the gun
in the surrounding area. Officer Sheehy retraced the path that he had taken while chasing
Bentley. Although he did not find the firearm, a neighbor told him that he had seen
Bentley get out of the minivan, remove the license plate, and hide it on a nearby property.
The license plate was ultimately recovered, and police later confirmed that it had been
registered in Bentley‘s name. The van was also registered to Bentley.1
During the search for the firearm, two other officers approached the parked
minivan and looked through the windows. They could see a bulging pillowcase inside,
tied at the top. The pillowcase was so thin that the officers were able to identify its
contents as U.S. currency. When the firearm could not be found in the surrounding
neighborhood, the officers decided to search for it inside the unlocked minivan. One of
the officers briefly looked around the vehicle and under the seats, but did not touch the
pillowcase. He did not find the missing firearm.
1
The key to the van was also later found hidden in the patrol car in which police
had transported Bentley to the police station.
4
The gun was not found, and Bentley‘s accomplice was never apprehended. The
minivan was eventually moved to the Bensalem police headquarters, and officers
conducted a thorough search of the vehicle after obtaining search warrants. They found
the taser and the pillowcase, which contained $38,182, some of which was in bundles,
held together by Wachovia paper straps, and $200 of which was bait money.
Prior to trial, Bentley filed a motion to suppress the evidence that had been
recovered from the minivan, arguing that the evidence had been obtained in violation of
the Fourth Amendment. He also moved to suppress Trooper Oliverio‘s identification of
him as the driver of the minivan because, he claimed, the identification was the result of
an unlawful arrest. The District Court determined that both the evidence from the
minivan and Trooper Oliverio‘s identification were admissible.
Bentley was convicted of all charges on January 6, 2012. He filed a motion for a
judgment of acquittal and for a new trial on August 17, 2012. The District Court denied
the motion as untimely, and noted in the alternative that the motion was meritless.
Bentley appealed.
II2
Bentley raises two challenges on appeal. First, he contends that the District Court
erred in admitting the evidence discovered in the minivan because it was searched in
2
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291.
5
violation of the Fourth Amendment. Second, he argues that there was insufficient
evidence to support his conviction. We find both arguments to be without merit.
A
Bentley first contends that the District Court erred in admitting the evidence
discovered in the minivan because the officers‘ initial, warrantless search of the vehicle
was unlawful. We review the District Court‘s denial of the motion to suppress for clear
error as to the underlying factual findings, and we exercise plenary review over the
Court‘s application of the law to the facts. United States v. Perez, 280 F.3d 318, 336 (3d
Cir. 2002).
Police generally do not need a warrant to search a readily mobile vehicle so long as
they have probable cause to believe that the vehicle contains contraband or evidence of a
crime. Pennsylvania v. Labron, 518 U.S. 938, 940 (1996); Gov’t of Virgin Islands v.
Rasool, 657 F.2d 582, 586–87 (3d Cir. 1981). There is no question that, at the time of the
search, police had probable cause to believe that Bentley‘s minivan contained contraband
or stolen goods. Bentley argues, relying on the Supreme Court‘s plurality opinion in
Coolidge v. New Hampshire, 403 U.S. 443 (1971), that police may still be required to
obtain a warrant when the normal concerns that justify the automobile exception—such as
the risk of flight and impracticality of obtaining a warrant—are not present. See id. at 461(―The word ‗automobile‘ is not a talisman in whose presence the Fourth Amendment
fades away and disappears.‖). He claims that the automobile exception does not apply in
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this case because he was no longer occupying his vehicle when it was discovered, and so
there was no risk of flight. Under these circumstances, he claims, it would not have been
impracticable for the police to obtain a warrant.
Warrantless searches of vehicles have, however, been found lawful even ―in cases
in which the possibilities of the vehicle‘s being removed or evidence in it destroyed were
remote, if not nonexistent.‖ Cady v. Dombrowski, 413 U.S. 433, 441–42 (1973); see also
Labron, 518 U.S. at 939–40 (automobile exception applied to the warrantless search of
defendants‘ vehicles, even though the defendants had already been arrested at the time of
the search and no exigent circumstances existed). This is because, ―[e]ven in cases where
an automobile [i]s not immediately mobile, the lesser expectation of privacy resulting
from its use as a readily mobile vehicle justifie[s] application of the vehicular exception.‖
California v. Carney, 471 U.S. 386, 391 (1985). Thus, officers can generally search
readily mobile vehicles without a warrant as long as they have probable cause, even if
there is no immediate risk of flight. Labron, 518 U.S. at 940.
Bentley‘s reliance on Coolidge—which, in light of the Supreme Court‘s more
recent decisions, provides at most a very narrow carve-out to the automobile exception—
is unavailing. In Coolidge, police seized the defendant‘s car from his driveway and
searched it pursuant to an invalid warrant. 403 U.S. at 447, 449, 458. The Supreme Court
rejected the Government‘s argument that the search was nevertheless permissible under
the automobile exception. Police had suspected that the defendant‘s car contained
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evidence of a murder for some time before conducting the search, and the defendant, who
was aware that he was a suspect, had cooperated with the police throughout the
investigation. Id. at 460. The Court explained:
[T]here is nothing in this case to invoke the meaning and purpose of [the
automobile exception]—no alerted criminal bent on flight, no fleeting
opportunity on an open highway after a hazardous chase, no contraband or
stolen goods or weapons, no confederates waiting to move the evidence, not
even the inconvenience of a special police detail to guard the immobilized
automobile. In short, by no possible stretch of the legal imagination can this
be made into a case where ―it is not practicable to secure a warrant,‖ and the
―automobile exception,‖ despite its label, is simply irrelevant.
Id. at 462 (internal citation omitted).
Here, in contrast, the search of the vehicle occurred almost immediately after the
bank robbery. Police suspected that the minivan contained the stolen money and
weapons, and they had reason to be concerned about the actions that Bentley‘s
accomplice might take. Bentley was no longer capable of flight at the time of the search,
but his accomplice, who was never apprehended, was presumably still in the area. Also
significant is the fact that Bentley abandoned the minivan on the side of the road; the
police did not need to enter private property in order to search the vehicle. See Cardwell
v. Lewis, 417 U.S. 583, 593 (1974) (distinguishing Coolidge on the grounds that the
Coolidge vehicle ―was parked on the defendant‘s driveway,‖ and so ―the seizure of that
automobile required an entry upon private property‖). Thus, the automobile exception
applies, and the District Court did not err when it held that police were not required to
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obtain a warrant before searching the minivan.3
B
Bentley also argues that the Government did not produce sufficient evidence to
support the verdict. We generally exercise de novo review over a district court‘s denial of
a motion for judgment of acquittal, and must ―sustain the verdict if there is substantial
evidence, viewed in the light most favorable to the government, to uphold the jury‘s
decision.‖ United States v. Flores, 454 F.3d 149, 154 (3d Cir. 2006) (quoting United
States v. Gambone, 314 F.3d 163, 169–70 (3d Cir. 2003)). Here, Bentley failed to file a
timely motion for judgment of acquittal,4 so we review his sufficiency of the evidence
claim for plain error. United States v. Powell, 113 F.3d 464, 466–67 (3d Cir. 1997). The
applicable standard of review makes little difference in this case, however, as the
Government produced ample evidence to support a guilty verdict.
At trial, Wachovia employees provided detailed testimony about both the robbery
and Bentley‘s getaway vehicle, and police officers described at length the chase that
3
The District Court also provided several other justifications for upholding the
search of the minivan. Because we find that the automobile exception applies, we need
not discuss these other justifications in depth. We note, however, that we agree with the
District Court‘s determination that the evidence would also be admissible under both the
independent source doctrine and the inevitable discovery doctrine.
4
See Fed. R. Crim. P. 29(c)(1) (defendant may move for a judgment of acquittal
within 14 days after a guilty verdict or after the court discharges the jury); see also Dkt.
103 (motion for acquittal filed August 22, 2012); App. 22–23 (denying Bentley‘s motion
for judgment of acquittal, filed seven months after trial, as untimely).
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ensued when they found Bentley and his accomplice on Route 1. Although the police
briefly lost sight of Bentley, they soon rediscovered the abandoned minivan, and they
found Bentley close by. The police then found the money that had been stolen from
Wachovia and the taser in the minivan. A subsequent investigation established that the
minivan belonged to Bentley.
Bentley primarily argues that one specific piece of evidence—Trooper Oliverio‘s
identification based on the Route 1 chase—was not sufficiently reliable to support a guilty
verdict. He emphasizes the fact that Trooper Oliverio saw the driver for only three
seconds before the chase commenced, and he claims that the pre-trial identification was
conducted in a suggestive manner.5 This argument fails to persuade because the jury had
ample evidence on which to convict Bentley, with or without Trooper Oliverio‘s
identification.
III
For the foregoing reasons, we will affirm Bentley‘s judgment of conviction.
5
Bentley also suggests that, because of its unreliability, Trooper Oliverio‘s
identification should have been suppressed. Bentley waived this argument, however,
when he failed to raise it in the District Court. See United States v. Rose, 538 F.3d 175,
182 (3d Cir. 2008) (―[A] suppression argument raised for the first time on appeal is
waived (i.e., completely barred) absent good cause.‖); see also Dkt. 41 (arguing only that
the District Court should suppress ―any identification made as a result of Mr. Bentley’s
unlawful arrest‖ (emphasis added)). Bentley has not identified any justification for his
failure to raise the issue below.
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