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United States v. Mosby

September 4, 2008


Appeal from the United States District Court for the Central District of Illinois. No. 06 CR 10072-Joe Billy McDade, Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge.


Before EASTERBROOK, Chief Judge, and KANNE and WOOD, Circuit Judges.

Police officers arrested Cory Mosby after stopping and searching the minivan in which he was a passenger and finding drugs (some apparently in plain view) and a gun. Police later found another gun in his apartment. The district court denied his motion to suppress all of this evidence, and a jury then found him guilty of all charged offenses. On appeal Mosby challenges only the denial of his motion to suppress. Because the police had probable cause to stop the minivan and the driver then consented to a search, which was in any case justified by probable cause, we affirm.


Mosby was indicted for possessing cocaine base with intent to distribute, see 21 U.S.C. § 841(a)(1), (b)(1)(A), possessing a firearm in furtherance of drug trafficking, see id. § 924(C), and possessing another firearm as a felon, see id. § 922(g)(1). He filed a motion to suppress, claiming that all of the government's evidence was traceable to what he said was the unlawful search of the minivan. At the resulting evidentiary hearing, two police officers described the events leading up to the search. Officer Marion told the court that on August 23, 2006, the Peoria Police Department was conducting a narcotics surveillance of Mosby's apartment. As they watched, at about 3:45 p.m., Mosby and his girlfriend, Ashley Hunter, came outside apparently arguing, and Mosby got into a car parked in the parking lot and sat there briefly. He then went back inside the apartment with Hunter. Moments later, Hunter exited the apartment with a knife and began slicing at the tires of the car in which Mosby had been sitting. Several minutes passed before Mosby came out of the apartment carrying a white plastic garbage bag and walked toward a nearby street with Hunter trailing behind him. As they stood at a corner, a black minivan driven by a third person arrived, and both got in.

The police followed the minivan across town. The driver got out, and Hunter took the wheel and drove to a hospital emergency room. At the hospital Mosby exited the minivan and started walking along a nearby street with his garbage bag, while Hunter went inside the hospital. A few minutes later, however, she returned to the minivan and picked up Mosby.

Officer Marion went into the hospital after Hunter had departed and asked a nurse about her visit. The nurse said that Hunter had cut her finger and required treatment, and she expressed surprise when Marion told her that Hunter had left. Marion passed that information along to Sergeant Mushinsky and asked him to stop the minivan to check on Hunter's injury. Marion warned Mushinsky that officers had seen Hunter slashing car tires after an apparent domestic dispute, and he added that her passenger in the minivan had been carrying a white plastic bag. Marion testified that he believed there was probable cause to arrest Hunter for committing the state-law offense of criminal damage to property because he had witnessed her slashing a car's tires.

Sergeant Mushinsky, the other police witness, testified that he and Officer Gray stopped the minivan at about 5:00 p.m. On cross-examination, he acknowledged that at the time he did not know when Hunter had slashed the tires, and he conceded that the only reason he stopped the minivan was because he had been directed to do so. Mushinsky related that after he got out of his car, he had yelled to Gray because he saw Mosby reach into a bag between the seats as the officers approached the minivan. Gray, Mushinsky said, handcuffed Mosby as Mosby got out of the minivan, while Mushinsky approached Hunter. Mushinsky saw that Hunter had a napkin wrapped around her finger as she gave him her driver's license. He asked her about the napkin, and she said she had cut her finger slashing her boyfriend's tires but denied that she had the knife with her. She told Mushinsky that the officers could check the minivan. As he spoke with Hunter, Mushinsky said, he smelled marijuana coming from the minivan.

Sergeant Mushinsky then asked Hunter to exit the minivan and wait in a nearby patrol car. After she com-plied, he searched the vehicle, starting with Mosby's white garbage bag. On top of that bag was what appeared to be a "fairly large" bag of marijuana, and another smaller bag of marijuana sat on the passenger seat. Inside the white plastic bag, he found a pair of shorts and a "large amount of crack cocaine." Mushinsky then transported Mosby and Hunter to the police station while other officers continued the search. Police found a gun under the passenger seat of the minivan. At the police station, Hunter consented to a search of Mosby's apartment, which she shared. That search uncovered another gun.

Hunter, who was not arrested or charged with any offense, also testified at the hearing. Though her story differed slightly from the testimony of the police officers, she generally confirmed the order and details of the events up to and including the traffic stop. But she testified that she did not remember Sergeant Mushinsky asking her during the stop whether she had a knife or telling him that he could look for it in the van. She instead recalled that he had focused almost entirely on whether she had been injured during the domestic dispute.

The district court found that "the police had probable cause" to stop the minivan and arrest Hunter "because they had probable cause to believe she had committed a crime." The court questioned whether that alone was enough to "authorize them to search the vehicle," and so the court examined instead whether Hunter had consented to the search. The court found Hunter's testimony less credible than Sergeant Mushinsky's because it made sense that he would have asked her about the knife for the officers' safety. Thus, the court found that Hunter had consented to allow police to search the van and denied Mosby's motion to suppress the evidence recovered from the van and the apartment.

Mosby proceeded to a jury trial, and the jury then found him guilty on all counts. The district court sentenced him to a total of 262 months' imprisonment on the drug and ยง 922(g)(1) counts, plus a ...

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