                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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                                                            NOT PRECEDENTIAL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.




                                              9
