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United States v. Mosley

United States Court of Appeals, Tenth Circuit

March 3, 2014

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JERMAINE LAMAR MOSLEY, Defendant - Appellant

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. No. 6:12-CR-10214-EFM-1).

John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, KS, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, KS, for Plaintiff-Appellee.

Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges.

OPINION

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BALDOCK, Circuit Judge.

Defendant Jermaine Mosley entered a conditional guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He appeals the district court's denial of his motion to suppress the gun that was the basis of this offense. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

At about 3:00 a.m. on Friday, September 21, 2012, Wichita police officers received word from Sedgwick County 911 that two black males were handling a gun while sitting in a black Ford Focus parked in a Denny's parking lot. The 911 caller had identified himself as Brandon Jackson, but admitted that he himself had not seen the gun; rather another anonymous person told Jackson about the gun. Ultimately, the district court found this tip was anonymous as far as the police were concerned.

Two officers initially responded to the call. They pulled into a shopping center next to the Denny's. Only one black Ford Focus was in the Denny's parking lot. The officers then began to sneak up on the car from the front passenger's side with weapons drawn. When the officers were 25 to 30 feet from the car, they could see two black males inside. The officers then approached the car; one crossed in front of the car from the passenger's side over to the driver's side, and one remained on the passenger's side. With weapons raised, the officers caught the car's occupants off guard, shouting " Hands up, hands up, get your hands up." The driver put his hands up immediately. Defendant (the passenger), however, did not. Although he hesitated briefly and appeared momentarily disoriented, Defendant quickly began making furtive motions with his right shoulder and arm that officers testified were consistent with trying to either hide or retrieve a weapon. In response, one of the officers began yelling louder and kicking the driver's door to shock Defendant into compliance. After ignoring repeated commands to put his hands up, Defendant eventually complied. After Defendant raised his hands, one of the officers re-holstered his weapon, opened the passenger's door, and ordered Defendant to exit the car. Defendant did not immediately comply or respond so the officer pulled him from the car, put him on

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the ground face-down, and handcuffed him. Another officer then took Defendant into custody.

After the two occupants had been detained, one of the officers advised the others (multiple officers were by now on the scene) that Defendant " dumped a gun under [the passenger's] seat." Another officer then searched underneath the passenger's seat and found a black Ruger nine-millimeter handgun. Prior to ...


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