United States v. Milton Mosley

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-2050
_____________
UNITED STATES OF AMERICA
v.
MILTON MOSLEY,
Appellant
________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 1-17-cr-00155-001)
District Judge: Honorable Sylvia H. Rambo
________________
Submitted Under Third Circuit L.A.R. 34.1(a)
April 14, 2020
________________
Before: CHAGARES, SCIRICA, and ROTH, Circuit Judges.
(Opinion filed: May 20, 2020)
____________
OPINION *
____________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
CHAGARES, Circuit Judge.
Milton Mosley, the defendant, appeals from the District Court’s judgment of
conviction. Mosley contends that the District Court erred by failing to suppress the
evidence seized at the time of his arrest. We disagree and will affirm.
I.
We write only for the parties and so recite just those facts necessary to our
disposition. On January 4, 2017, two police officers, Darrin Bates and Nicholas Ishman,
drove past 1925 Park Street in Harrisburg, Pennsylvania because of reported drug activity
in the area. In front of that address, Officer Bates saw Mosley sitting in a parked car with
a clear plastic bag on his lap. The bag appeared to contain a white substance that Officer
Bates believed to be cocaine base, so the officers looped around the block and passed
Mosley again. But the second time, neither officer saw the bag on Mosley’s lap.
The officers parked and walked to Mosley’s car. While Officer Bates was talking
with Mosley on the driver side of the car, Officer Ishman smelled marijuana and saw a
burnt marijuana roach in the ashtray from the passenger side. Officer Ishman informed
Officer Bates of his observations, so Officer Bates bent down, and he smelled marijuana
in the car, too.
Officer Bates asked Mosley to step out of the car and told him that he had seen
what he believed to be cocaine base on Mosley’s lap. Mosley responded that it was
marijuana and handed Officer Bates a bag of marijuana from his pocket. Mosley then
consented to Officer Bates’ request to search his car, and during the search, Officer Bates
found a handgun. When asked, Mosley told Officer Bates that he did not have a permit
2
to carry a weapon. Officer Ishman placed Mosley under arrest, searched his person
incident to the arrest, and found a prescription bottle containing seven plastic bags of
cocaine base.
A federal grand jury charged Mosley with possession with the intent to distribute
cocaine base in violation of 21 U.S.C. § 841, possession of a firearm by a felon in
violation of 18 U.S.C. § 922(g), and possession of a firearm in furtherance of drug
trafficking in violation of 18 U.S.C. § 924(c). Before trial, Mosley moved to suppress all
evidence seized at the time of his arrest, claiming violations of his Fourth Amendment
rights. The District Court denied Mosley’s motion.
Later, a jury found Mosley guilty of possession with the intent to distribute
cocaine base and acquitted him on the other charges. After sentencing, Mosley timely
appealed.
II.
Mosley argues that the District Court erred in denying his pretrial motion to
suppress the evidence gathered on January 4, 2017 because the stop, search of the car,
and search of his person each violated the Fourth Amendment. We are not persuaded. 1
At the outset, we assume without deciding that when the officers approached
Mosley to question him, they stopped him. Still, that stop did not violate the Fourth
Amendment. “[A]n officer may, consistent with the Fourth Amendment, conduct a brief,
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291. In an appeal challenging the denial of a motion to suppress, “the
District Court’s factual findings are reviewed for clear error and its legal determinations
are subject to plenary review.” United States v. Green, 897 F.3d 173, 178 (3d Cir. 2018).
3
investigatory stop when the officer has a reasonable, articulable suspicion that criminal
activity is afoot.” United States v. Torres, 534 F.3d 207, 210 (3d Cir. 2008) (quoting
Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). Here, the officers had reasonable
suspicion to stop Mosley because, in an area with reported drug activity, Officer Bates
observed what he believed to be cocaine base on Mosley’s lap, and after the officers’ first
pass, Mosley removed the bag. See United States v. Whitfield, 634 F.3d 741, 744, 745 &
n.3 (3d Cir. 2010) (concluding there was reasonable suspicion to justify a stop when an
officer believed he saw a “closed fist hand-to-hand” drug exchange and a later “effort to
conceal something” in a “high crime area where there’s been drug transactions”
(quotation marks omitted)).
Next, the search of Mosley’s car did not violate the Fourth Amendment because
Mosley freely consented to that search. See United States v. Murray, 821 F.3d 386, 391
(3d Cir. 2016) (“While the Fourth Amendment prohibits unreasonable searches and
seizures, consent is an exception to the requirements of both a warrant and probable
cause.” (quotation marks and alteration omitted)). Although Mosley disputes that he
consented, the District Court’s finding to the contrary was not clearly erroneous.
Finally, the search of Mosley’s person incident to his arrest did not violate the
Fourth Amendment, either. By the time of that search, the officers had determined that
Mosley possessed marijuana and that he had a handgun without a permit. The officers
therefore had probable cause to arrest Mosley and to search his person incident to that
arrest. See Arizona v. Gant, 556 U.S. 332, 338 (2009) (“Among the exceptions to the
[Fourth Amendment’s] warrant requirement is a search incident to a lawful arrest.”).
4
III.
For these reasons, the District Court did not err in denying Mosley’s motion to
suppress. We therefore will affirm the judgment of conviction.
5