United States v. Stanley Mosley, Jr. , 878 F.3d 246 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-4379
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Stanley Earl Mosley, Jr.
lllllllllllllllllllll Defendant - Appellant
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No. 16-4424
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Katherine Amanda Pihl
lllllllllllllllllllll Defendant - Appellant
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No. 16-4489
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Lance Lapae Monden
lllllllllllllllllllll Defendant - Appellant
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Appeals from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: September 21, 2017
Filed: December 21, 2017
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Before SMITH, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Stanley Mosley, Katherine Pihl, and Lance Monden appeal the district court’s1
denial of their motions to suppress. Mosley also appeals the district court’s
determination that he qualifies as a career offender under the United States
Sentencing Guidelines (“U.S.S.G.”). For the reasons that follow, we affirm.
1
The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa, adopting the report and recommendations of the
Honorable Jon Stuart Scoles, United States Magistrate Judge for the Northern District
of Iowa, now retired.
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I.
On May 20, 2016, at approximately 2:35 p.m., two individuals robbed a bank
in Palo, Iowa. The robbers were in the bank for about a minute. As the robbers were
leaving the bank, four individuals in a truck driving by saw the robbers flee across the
grass but eventually lost sight of them. As the truck circled around the block
attempting to spot the robbers again, one of the individuals in the truck (“the
witness”) called the bank. After the bank received the call from the witness, a bank
employee called 911 and began relaying information about the robbery, including
information the employee was getting from the witness on the other line. Though the
witness could not locate the robbers he initially saw running from the bank, he
reported that a gray/silver Ford Taurus was in the vicinity of the bank and was the
only vehicle leaving the area in the moments after the robbery. The witness followed
the Taurus and gave its location and direction of travel to the bank employee, who
continued to relay the information to 911 dispatch. When the witness got close
enough to see inside the gray Taurus, he reported that he could only see one woman
in the car, whereas he had seen two men running from the bank. At this point, the
witness indicated that he was no longer sure if the gray Taurus was involved in the
bank robbery.
Around 2:40 p.m., Deputy Uher received a radio dispatch that a gray Ford
Taurus may have been involved in a bank robbery and was seen heading southbound
on Highway 94 toward Cedar Rapids. A few minutes later, he identified a vehicle
matching the color, make, and model given in the description, and the vehicle was
traveling in the direction indicated by the witness. At about 2:44 p.m., Deputy Uher
initiated a stop of the Taurus approximately 5.8 miles from the bank and
approximately eight minutes after the robbery took place.
Deputy Uher ran the Taurus’s license plate number and determined that the car
was registered to Farrah Franklin. As Deputy Uher prepared to approach the driver,
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dispatch reported that the witness was not sure if the Taurus was involved in the
robbery. Deputy Uher spoke with the driver, Katherine Pihl, but did not see anyone
else inside the car. Deputy Uher then told Pihl she could leave, but before she could,
another officer suggested via radio that Deputy Uher obtain more information from
Pihl. At about 2:47 p.m., dispatch informed Deputy Uher that they had spoken
directly to the witness and that he indicated he did not actually see the two robbers
get in the gray Taurus. Deputy Uher then told dispatch that he was going to let Pihl
go. Another deputy suggested that Deputy Uher check the trunk. At approximately
2:48 p.m., Pihl opened the trunk. Inside and about four minutes after Deputy Uher
initiated the stop, officers found Monden and Mosley, along with cash and masks.
Pihl, Monden, and Mosley were arrested.
Pihl, Monden, and Mosley were indicted for bank robbery in violation of 18
U.S.C. § 2113(a). All three filed motions to suppress evidence under the Fourth
Amendment. The magistrate judge filed a report and recommendation concluding
that the district court should deny the motions to suppress. Thereafter, Pihl, Monden,
and Mosley pleaded guilty, reserving their rights to appeal the denial of the
suppression motions. See Fed. R. Crim. P. 11(a)(2). The district court accepted the
report and recommendation and denied the motions to suppress. At sentencing, the
district court found that Mosley qualified for a career offender enhancement but
varied downward after calculating his guidelines range. On appeal, Pihl, Monden,
and Mosley challenge the denial of their suppression motions, and Mosley challenges
his sentence, claiming that he does not qualify as a career offender.
II.
“We review the denial of a motion to suppress de novo but the underlying
factual determinations for clear error, giving due weight to inferences drawn by law
enforcement officials.” United States v. Hurd, 785 F.3d 311, 314 (8th Cir. 2015). In
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their motions to suppress, the appellants challenged the legality of the stop, the
duration of the stop, and the search of the trunk. We address each issue in turn.
A.
“The Fourth Amendment permits investigative traffic stops when law
enforcement has reasonable suspicion of criminal activity.” United States v. Tamayo-
Baez, 820 F.3d 308, 312 (8th Cir. 2016) (citing Navarette v. California, 134 S. Ct.
1683, 1687 (2014)). Reasonable suspicion “is considerably less than proof of
wrongdoing by a preponderance of the evidence, and obviously less than is necessary
for probable cause.” Navarette, 134 S. Ct. at 1687 (internal quotation marks omitted).
“Reasonable suspicion exists when an officer is aware of particularized, objective
facts which, taken together with rational inferences from those facts, reasonably
warrant suspicion that a crime is being committed.” United States v. Givens, 763 F.3d
987, 989 (8th Cir. 2014) (internal quotation marks omitted). Though an “inchoate
hunch” does not equate to reasonable suspicion, “the Fourth Amendment only
requires that police articulate some minimal, objective justification for an
investigatory stop.” Tamayo-Baez, 820 F.3d at 312. We assess whether a law
enforcement official had reasonable suspicion of criminal activity based on the
totality of the circumstances. Id.
The appellants claim that the district court erred in two ways when finding that
the vehicle stop was supported by reasonable suspicion. First, they assert that
because the police officers in this case were unsure whether the gray Taurus was
involved in the bank robbery, they lacked reasonable suspicion to stop a vehicle
matching that description. Second, the appellants argue that the tip from the witness
was unreliable and therefore insufficient to create reasonable suspicion of criminal
activity. Both contentions are inconsistent with controlling precedent.
First, the appellants rely on the Fifth Circuit’s decision in United States v.
Jaquez, 421 F.3d 338 (5th Cir. 2005) (per curiam), to support the idea that law
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enforcement lacked sufficient specific information to support reasonable suspicion
because the witness was not able to state “concretely” that the Ford Taurus was
involved in the bank robbery. In Jaquez, the Fifth Circuit found that an officer who
received a call from dispatch regarding an incident involving “shots fired” and a “red
vehicle” lacked reasonable suspicion to stop a red vehicle leaving the area fifteen
minutes later. Id. at 340-41. The court explained that the “sparse and broadly generic
information provided by the dispatcher, without more, was insufficient to support a
determination of reasonable suspicion.” Id. at 341.
The facts in Jaquez are readily distinguishable from this case, but, more
importantly, our own precedent rejects any requirement that there must be a definite
or certain connection to the criminal activity to support reasonable suspicion. In
United States v. Roberts, a masked gunman fired shots at three people, and witnesses
saw a black Chrysler quickly leaving the area after the shooting. 787 F.3d 1204, 1207
(8th Cir. 2015). An officer saw a black Chrysler about seven blocks from the location
of the shooting and stopped the vehicle. Id. The defendant in that case argued that
at the time of the stop, it was unclear what role the black Chrysler played in the
shooting. Id. at 1210. The defendant also claimed that “the clothing he was wearing
when he was pulled over did not match the descriptions given by some of the
witnesses.” Id. Accordingly, he argued that the stop was unlawful because the
officer lacked reasonable suspicion to believe he was involved in criminal activity.
Id. We disagreed, noting that “[i]t is not surprising that moments after the shooting,
the police were unsure of the precise role the black Chrysler may have played. And
in light of this brief time frame, it was reasonable for [the officer] to stop a car
matching the description of the car that witnesses had seen fleeing the scene of the
crime.” Id. We took special note of “the close temporal and physical proximity of
the car to the crime” and ultimately concluded that the officer had reasonable
suspicion justifying the investigative stop. Id. (citing United States v. Juvenile TK,
134 F.3d 899, 903-04 (8th Cir. 1998)).
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Just as in Roberts, the police in this case “were unsure of the precise role the
[gray Taurus] may have played.” See id. However, the gray Taurus was the only
vehicle that the witness saw leaving the area shortly after spotting two hooded men
flee from the bank. Deputy Uher then identified the vehicle in close geographic and
temporal proximity to the robbery, traveling in the direction and on the road provided
by the witness. While the driver of the Taurus did not match the description of the
two men fleeing the scene of the bank robbery, the defendant in Roberts also did not
match exactly the descriptions given by witnesses. See id.; cf. Navarette, 134 S. Ct.
at 1691 (“[W]e have consistently recognized that reasonable suspicion need not rule
out the possibility of innocent conduct.” (internal quotation marks omitted)). Thus,
based on these factors and “the close temporal and physical proximity of the [gray
Taurus] to the crime,” the totality of the circumstances indicates that reasonable
suspicion supported the vehicle stop and rendered it constitutional. See Roberts, 787
F.3d at 1210.
Second, the appellants argue that Deputy Uher lacked reasonable suspicion to
stop the Taurus because the tip from the witness was unreliable. The appellants claim
that even though the witness’s name and telephone number were known, nothing else
was known about this individual. They argue that law enforcement had no
information regarding the witness’s veracity and did not receive the information from
the witness directly but from a third party who was on the phone with both the
witness and the police.
The Supreme Court’s analysis in Navarette v. California, however, suggests
that the witness’s tip was reliable and provided reasonable suspicion to make the stop.
When evaluating tips, reasonable suspicion “is dependent upon both the content of
the information possessed by the police and its degree of reliability.” Navarette, 134
S. Ct. at 1687. In Navarette, a law enforcement dispatch team received a call from
another dispatcher in a neighboring county relaying a tip from a 911 caller. Id. at
1686. The tipster reported that another car ran her off the highway five minutes
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earlier and gave a description of the vehicle and its license plate number. Id. at 1686-
87. In finding that the officer’s reliance on the tip was justified, the Supreme Court
emphasized the “eyewitness knowledge of the alleged dangerous driving,” the
“contemporaneous report[ing]” of the incident, and the ability to hold the tipster
accountable for potentially false reports. Id. at 1689-90.
Here, the very same factors—eyewitness knowledge, contemporaneous
reporting, and accountability—weigh in favor of the witness’s reliability. The
witness claimed eyewitness knowledge of the facts at hand and was able to predict
the Taurus’s direction of travel. Moreover, the witness reported his observations
nearly “contemporaneous[ly]”—he called the bank within five minutes of the robbery,
and a bank employee promptly began relaying information to a 911 operator. Finally,
because the witness’s name and telephone number were known, he could be held
accountable for false reporting. As a result, based on Navarette, we find that the
witness’s tip that Deputy Uher relied upon was reliable. Therefore, the district court
properly concluded that the stop was supported by reasonable suspicion under the
totality of the circumstances.
B.
We next consider whether the stop of the Taurus was prolonged
unconstitutionally after Deputy Uher’s initial conversation with Pihl. “The Fourth
Amendment requires that a search not continue longer than necessary to effectuate
the purposes of an investigative stop.” United States v. Watts, 7 F.3d 122, 126 (8th
Cir. 1993). “[A]n investigative stop must cease once reasonable suspicion or
probable cause dissipates.” Id. The appellants argue that law enforcement unlawfully
extended the stop after they obtained Pihl’s information and determined that she was
alone in the cab of the car, contrary to the witness’s tip reporting two male suspects.
In Rodriguez v. United States, the Supreme Court held that “the tolerable
duration of police inquires in the traffic-stop context is determined by the seizure’s
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‘mission.’” 135 S. Ct. 1609, 1614 (2015). In other words, “a police stop exceeding
the time needed to handle the matter for which the stop was made violates the
Constitution’s shield against unreasonable seizures,” id. at 1612, because a “seizure
remains lawful only so long as [unrelated] inquires do not measurably extend the
duration of the stop,” id. at 1615 (internal quotation marks omitted) (alteration in
original). When conducting a traffic stop, the “mission” of stopping the vehicle is to
address a traffic violation and related safety concerns. Applying this logic, the
Supreme Court concluded that law enforcement cannot unlawfully extend a traffic
stop to allow a drug-sniffing dog to check for narcotics after the traffic violation has
already been addressed. Id. at 1614-15, 1616-17 (remanding to determine “whether
reasonable suspicion of criminal activity justified detaining [the defendant] beyond
the completion of the traffic infraction investigation”).
Appellants rely on the Second Circuit’s application of Rodriguez and suggest
that the scope of law enforcement’s mission in this case was limited to determining
whether the occupants of the vehicle matched the description of the suspected bank
robbers. See United States v. Watson, 787 F.3d 101, 102-05 (2d Cir. 2015) (finding
that an officer, while looking for a single known suspect, unconstitutionally searched
an individual that the officer knew was not the targeted suspect). Here, however, the
mission of the stop was not to investigate a traffic violation or identify a match to a
known suspect but rather to determine whether and to what extent the Taurus was
involved in the bank robbery. Law enforcement worked diligently in pursuit of this
mission.
Nonetheless, the appellants argue that the stop was unlawfully extended. In
particular, they contend that any reasonable suspicion based on the witness’s tip
dissipated when Deputy Uher obtained Pihl’s information and determined that she
was alone in the passenger compartment of the car, in contradiction to the witness’s
tip reporting two men fleeing the scene of the bank robbery. Furthermore, the
appellants point out that “[n]othing about Deputy Uher’s interactions with Pihl
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indicated to him that the Ford Taurus was involved.” At that point, the appellants
claim, reasonable suspicion no longer existed and further investigation unlawfully
extended the stop.
But reasonable suspicion did not dissolve simply because Pihl did not match
the description given by the witness or because Deputy Uher’s initial investigation
did not bolster his original suspicion. Discrepancies between the information
provided in the tip and the facts on the ground—even inconsistencies as to the
number of occupants in a vehicle—do not alone undermine reasonable suspicion,
especially where there are other factors corroborating the tip and reasonable
explanations for the discrepancies. See, e.g., United States v. Hurst, 228 F.3d 751,
757 (6th Cir. 2000) (“The presence of three persons in the car, rather than two, is a
discrepancy that might reasonably be explained in any number of ways and does not
defeat the assessment that [the officer] had reasonable grounds to investigate
further.”). As the Government noted in its brief, bank robbers often use getaway
drivers, so when investigating whether a vehicle was involved in such a robbery, “law
enforcement’s mission could include determining if the driver is the getaway driver,
even if she does not meet the description of the men who went into the bank.”
Furthermore, it is foreseeable that bank robbers using getaway drivers would conceal
themselves in the vehicle’s trunk.
Appellants argue, however, that Deputy Uher in fact lacked the requisite
suspicion to continue the stop. Indeed, he was twice prepared to let Pihl leave. Still,
their argument ignores the collective knowledge doctrine: “collective knowledge of
law enforcement officers conducting an investigation is sufficient to provide
reasonable suspicion, and the collective knowledge can be imputed to the individual
officer who initiated the traffic stop when there is some communication between the
officers.” United States v. Thompson, 533 F.3d 964, 969 (8th Cir. 2008); see also
United States v. Williams, 429 F.3d 767, 771-72 (8th Cir. 2005) (finding that the
collective knowledge doctrine allowed knowledge of other officers to be imputed to
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an officer who received a radio request to stop the vehicle). Perhaps with this in
mind, the appellants suggest that Deputy Uher “waited to obtain input from other
deputies on the radio” and that “waiting for input from officers who aren’t even at the
scene is not expeditious.” We disagree. The entire stop took only four minutes and
was not unconstitutionally extended by Deputy Uher conferring with other officers
via radio. Indeed, the officers’ communication was immediate and did not
“measurably extend the duration of the stop.” Rodriguez, 135 S. Ct. at 1615 (internal
quotation marks omitted).
The mission of the stop—assessing whether the vehicle was involved in the
bank robbery—was ongoing throughout Deputy Uher’s interaction with Pihl. Law
enforcement pursued that mission diligently and without measurable delay. Thus, the
duration of the stop was reasonable. Cf. United States v. Murillo-Salgado, 854 F.3d
407, 415-16 (8th Cir. 2017) (finding that a twenty-three minute stop, which began as
a traffic stop but developed into an investigatory stop, was not unconstitutionally
prolonged).
C.
Finally, we consider the appellants’ challenge to law enforcement’s search of
the trunk of the Taurus. The district court found that they lacked standing to
challenge the search of the trunk because they did not have “a reasonable expectation
of privacy in the property to be searched.” Only Pihl and Monden challenge the
search of the trunk on appeal.
We review whether an individual has standing to challenge a search de novo.
United States v. Anguiano, 795 F.3d 873, 878 (8th Cir. 2015). “Fourth Amendment
rights are personal rights that may not be asserted vicariously.” Id. “An individual
asserting Fourth Amendment rights must demonstrate that he personally has an
expectation of privacy in the place searched, and that his expectation is reasonable.”
Id. (internal quotation marks omitted). To establish standing, “[t]he defendant
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moving to suppress bears the burden of proving he had a legitimate expectation of
privacy that was violated by the challenged search.” United States v. Muhammad, 58
F.3d 353, 355 (8th Cir. 1995) (per curiam). In determining whether an individual has
standing to challenge a vehicle search, “ownership” and “permission” play an
important role. United States v. Gomez, 16 F.3d 254, 256 (8th Cir. 1994); see also
United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998). We have held that an
individual lacked standing because “he did not own the car, and the owner did not
give him permission to use it.” Gomez, 16 F.3d at 256 (finding the defendant lacked
a reasonable expectation of privacy in a vehicle, even where a “third party told [the
defendant] the owner had given permission for its use”). While the standing analysis
may include other factors as well, see id., neither Pihl nor Monden identify any such
considerations in this case.
In a July 2016 interview, Farrah Franklin, the owner of the gray Taurus, told
officers that she did not know Mosley, Monden, or Pihl and had not given them
permission to use her car. In fact, Franklin had called the Cedar Rapids Police
Department on the day of the bank robbery to report the vehicle stolen, though she
never completed a formal report. The car was registered in Franklin’s name.
Franklin’s husband, Cedric Rivers, testified at the suppression hearing that he
borrowed the car with Franklin’s permission and then loaned it to Monden. He
testified that Franklin had, in the past, specifically told him not to loan the car to
Monden and generally not to let anyone else use the vehicle.
Pihl contests the search of the trunk but does not contest the fact that she
lacked permission to drive the vehicle or that she failed to otherwise establish an
expectation of privacy in the vehicle. Without an expectation of privacy in the
Taurus, Pihl lacks standing to challenge the search of the trunk. See Muhammad, 58
F.3d at 355.
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Monden argues that he has standing to challenge the search of the trunk
because Rivers gave him permission to use the vehicle, which created an expectation
of privacy in the vehicle. However, Rivers himself acknowledged that Franklin did
not know that he loaned the car to Monden on this occasion and that she had
specifically prohibited him from loaning the car to other people. Thus, even if
Monden were correct in suggesting that, under certain circumstances, standing could
derive from permission given by an authorized user other than the owner of the
vehicle, Rivers expressly lacked authority to permit Monden to use the vehicle. That
fact invalidates any purported permission given by Rivers and distinguishes this case
from those raising the more difficult question regarding permission from an
unrestricted authorized user. Cf. United States v. Long, 870 F.3d 792, 797 n.3 (8th
Cir. 2017) (noting “the existence of a circuit split as to whether even a driver with
permission directly from the contractually authorized driver has standing to challenge
a search of the rental vehicle”).
Nevertheless, Monden seems to suggest that because he borrowed the vehicle
from Rivers “on a regular basis,” this use evolved into a basis for his reasonable
expectation of privacy in the vehicle. However, Monden’s only support for that
proposition is Rivers’s testimony that Rivers “usually” loaned him the vehicle, “a few
times” to “run to the store.” That very limited and unauthorized permission did not
create a reasonable expectation of privacy in the vehicle, especially where “everybody
knows it’s [Franklin’s] car.” Without any additional evidence explaining why he had
a reasonable expectation of privacy in the vehicle, Monden has failed to carry his
burden of proving he has standing to challenge the search of the trunk. See Gomez,
16 F.3d at 256; cf. Long, 870 F.3d at 797 (finding, in the rental-car context, that an
individual who was “an unauthorized-driver-once-removed, with only indirect
permission from the authorized driver to drive the vehicle, does not have standing to
challenge the search of the vehicle”).
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Because Pihl and Monden lack standing to challenge the search of the trunk,
the district court correctly denied the motions to suppress on this ground.
III.
We now turn to Mosley’s challenge to his designation as a career offender
pursuant to U.S.S.G. § 4B1.1. A person qualifies as a career offender if (1) he was
eighteen years or older at the time he committed the instant offense of conviction, (2)
the instant offense of conviction is a felony that is either a crime of violence or a
controlled substance offense, and (3) he has at least two prior felony convictions for
either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a).
Mosley argues that he is not a career offender because (1) his instant offense is not
a crime of violence and (2) his prior convictions for Illinois robbery and Iowa second-
degree robbery do not constitute crimes of violence. We review de novo a district
court’s determination that a conviction qualifies as a crime of violence under the
sentencing guidelines. United States v. Maid, 772 F.3d 1118, 1120 (8th Cir. 2014).
Here, however, it is unnecessary to consider whether Mosley’s prior offenses
qualify as crimes of violence because any error the district court may have committed
would be harmless. See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.”). Without the
career offender enhancement, Mosley’s guideline range would have been 70-87
months. With the enhancement, his guideline range was 151-188 months. The
district court applied the enhancement and then varied downward, imposing a
sentence of 132 months. It explained that its sentence “would be the same with or
without the . . . career offender enhancement.” Furthermore, the court supplemented
that determination with a thorough analysis of the 18 U.S.C. § 3553(a) factors,
finding that a sentence of 132 months was sufficient but not greater than necessary
to accomplish all sentencing purposes. Thus, we affirm the sentence imposed by the
district court. See United States v. Davis, 583 F.3d 1081, 1095 (8th Cir. 2009)
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(“Because the district court explicitly stated it would have imposed [the same
sentence] regardless of whether Davis was a career offender, any error on the part of
the district court is harmless, and we affirm.”).
IV.
For the foregoing reasons, we affirm the district court’s denial of appellants’
motions to suppress and the sentence imposed on Mosley.
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