N O T PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 05-4356

UNITED STATES OF AMERICA

v. K A M A U A. BAILEY,

Appellant

On Appeal from the United States District Court

f o r the Western District of Pennsylvania

(D .C . No. 04-cr-00024)

D is tric t Judge: Honorable Thomas M. Hardiman

Submitted Under Third Circuit LAR 34.1(a)

M a rc h 9, 2007

B e f o re : SLOVITER and AMBRO, Circuit Judges, and POLLAK,* District Judge

(F ile d March 20, 2007)

OPINION

S L O V IT E R , Circuit Judge.

Appellant Kamau A. Bailey was convicted by a jury on June 22, 2005 of two c o u n ts of possession of a firearm by a convicted felon in violation of 18U.S.C. § 9 2 2 (g )(1 ). On appeal, Bailey contends that the District Court erred in denying his p re tria l motions to suppress evidence resulting from allegedly illegal searches on May 1 9 , 2001 and January 1, 2003. He also contends that his arrest on January 1, 2003 was w ith o u t probable cause, that his motion for severance on the two counts should have b e e n granted, and that the statute he was charged under is unconstitutional. We will a f f irm .

I.

A s we write primarily for the parties, we will discuss only those facts relevant to o u r analysis, which are taken from the state police officers' testimony at the suppression h e a rin g s 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 e a rly morning hours of that day, Pittsburgh Police Lieutenant Kevin Kraus, who was on p a tro l 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 o c c u p a n t of the vehicle, later identified as Bailey, nevertheless continued to drive, with K ra u s in pursuit.

A f ter a chase of several blocks, Bailey stopped his car in the middle of the street, q u ic k ly exited the driver's side of the vehicle, and began to run. Kraus chased Bailey on f o o t until Bailey leapt over a wall at the rear of a residential complex. Kraus radioed for a ss is ta n c e as he watched Bailey flee; other responding officers apprehended Bailey s h o rtly thereafter. Kraus ran back to Bailey's vehicle, with its engine still running, and re m o v e d the key and locked the door. Other officers remained with Bailey's vehicle, w h ile Kraus went to the location where Bailey was apprehended and identified Bailey as th e 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 stree t, and ordered a tow truck. Prior to the tow, the officers conducted an inventory s e a rc h "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 o f his Miranda rights and arrested, told Kraus that he had received the gun from a man " n a m e d Chris from Brookline," and that the crack was for Bailey's personal use.1 App. a t 121.

Count II of the indictment arises out of the events occurring approximately a yeara n d -a -h a lf later. At quarter to two in the morning on January 1, 2003, Pittsburgh Police O f f ic e r Robert Kavals was on patrol with two other officers when he observed Bailey At trial on cross-examination, Bailey testified that he had lie d to Kraus and that the crack was actually for distribution p u rp o s e s . a n d another individual standing on the porch of an abandoned and boarded-up house in a h ig h -c rim e area. Concluding that there was "really no reason for anybody to be hanging o u t there," Kavals identified himself as a police officer and asked to speak with Bailey a n d the other individual. App. at 91. Bailey and the other individual began walking a w a y from the officers, and Kavals saw Bailey throw a shiny object into the grass. As th e other individual continued to walk away, the two other officers followed him; Bailey, h o w e v e r, 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 s ilv e r semi-automatic gun. As Bailey was a large individual, Kavals decided that he o u g h t to "stall . . . [and] keep [Bailey] calm and relaxed" until the two other officers re tu rn e d . App. at 93-94. He asked Bailey why he was in the area; Bailey replied that he h a d come to buy crack, and that he had smoked it all. Kavals also told Bailey he would s im p ly check over the radio if there were any outstanding warrants for him and then p e rm it him to leave. Once his back-up returned, Kavals then asked Bailey if he had a p erm it to carry a gun; in response, Bailey started to back up and said, "What gun? I don't h a v e a gun." App. at 94. Following a six-minute struggle, Bailey was subdued. The o f f ic e rs recovered a .22 caliber semi-automatic Astra pistol from the grass, and a .22 c a lib e r bullet from Bailey's right front pocket.

Bailey had been charged and convicted in state court on drug offenses c o n stitu tin g a felony punishable by imprisonment in excess of one year, and thus his p o s s e ss io n 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 s u p e rs e d in g indictment against Bailey on August 30, 2004, charging him with two c o u n ts of possession of a firearm by a convicted felon in violation of 18U.S.C. §§ 9 2 2 (g )(1 ), 924(a)(2), and 924(e) based upon the May 19, 2001 and January 1, 2003 in c id e n ts . Following motions made by Bailey and a December 24, 2004 initial s u p p re ss io n hearing, the District Court issued an opinion and order on February 14, 2 0 0 5 , finding no grounds to suppress the May 19, 2001 inventory search of the car and th e statements to Lieutenant Kraus. The Court also denied the request to suppress the g u n and .22 caliber bullet found during the January 1, 2003 arrest. Bailey moved for re c o n sid e ra tio n with respect to the May 19, 2001 search.

A t the second suppression hearing held April 25, 2005, Kraus testified that on M a y 19, 2001, he had followed the standardized search procedures of the Pittsburgh P o lic e Department, which require that the entire contents of a vehicle be inventoried p rio r to a tow. Kraus further testified that, although he did not remember if he ever saw th e department's actual written order on inventory policy, which requires that all locked o r sealed containers within a vehicle "be opened and inspected," App. at 165, all the s e a rc h e s he had ever conducted were in keeping with the contents of that document, and h e was trained in accordance with such a policy. The District Court again denied the m o tio n in an opinion and order issued May 13, 2005.

Before the trial, Bailey filed a motion for severance of the two counts, which the D is tric t Court denied. It also rejected Bailey's proposed jury instruction regarding the in te rs ta te commerce element of 18U.S.C. § 922(g). At the jury trial, Bailey was c o n v ic te d on both counts and was sentenced by the court to 235 months of im p riso n m e n t. He filed a timely appeal.

II.

We have jurisdiction under 28U.S.C. § 1291. This court reviews the factual f in d in g s of a district court for clear error but exercises plenary review over the legality of th e denial of a motion to suppress in light of the facts found. United States v. Riddick, 1 5 6 F.3d 505, 509 (3d Cir. 1998). We review the denial of a motion for severance for a b u s e of discretion, United States v. Hart, 273 F.3d 363, 369 (3d Cir. 2001), and apply a p le n a ry standard of review to questions regarding a statute's constitutionality. United S ta te s v. Randolph, 364 F.3d 118, 121 (3d Cir. 2004).

III.

A vehicle must have lawfully come into police custody before a warrantless v e h ic le inventory search may be conducted, United States v. Frank, 864 F.2d 992, 1001 (3 d Cir. 1988), and Bailey does not dispute that the police had such lawful custody of the c a r after he abandoned it in the middle of the street. Bailey argues, however, that the e x a m in a t io n of the contents of his vehicle violated the requirement that police must c o n d u c t 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 te stif ie d that he had followed the same inventory search procedure in this case as he had s in c e he became a Pittsburgh police officer in 1993, that he had been trained to follow th is procedure, and that the procedure that he followed was in accord with the written p o licy document produced by the police department. The District Court agreed and held th a t this inventory search was consistent with police procedures and the search was not u n c o n s titu tio n a l.

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 c a u se to believe that a criminal offense has been or is being committed." Devenpeck v. A lf o rd , 543 U.S. 146 , 152 (2004). "Whether probable cause exists depends upon the re a so n a b le conclusion to be drawn from the facts known to the arresting officer at the tim e of the arrest." Id.

O f f ice r 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 h e was able to see that the object was a gun, that Bailey told him he had bought and s m o k e d crack in the high-crime area where their encounter took place, and that Bailey d e n ie d any awareness of the gun when asked if he had a permit. Such observations s u p p o rte d probable cause to arrest in this case. Moreover, under the facts and c irc u m s ta n c es of this case, the search of Bailey's person that produced the .22 caliber b u lle t 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 F e d e ra l Rules of Criminal Procedure was in error because of the factual differences b e tw e e n the two arrests, and that it was an abuse of discretion for the District Court to d e n y his motion for relief from prejudicial joinder under Rule 14. "[T]he choice of w h e th e r to sever . . . rests in the sound discretion of the district courts. Accordingly, we re v ie w a district court's denial of a motion to sever for abuse of discretion." United S tate s v. Lore, 430 F.3d 190, 205 (3d Cir. 2005). Even if a district court abuses its d is c re tio n in denying a motion to sever, a defendant must show "clear and substantial p re ju d ic e resulting in a manifestly unfair trial" to obtain a reversal. United States v. C o n s o le , 13 F.3d 641, 655 (3d Cir. 1993) (internal citations, quotation marks, and e m p h a se s omitted). Here, the District Court removed any potential prejudice with a p p ro p ria te limiting instructions that assisted the jury in properly compartmentalizing the e v id e n c e for each charge. Bailey has not met his burden to demonstrate prejudice.

Finally, Bailey asks that we preserve his challenge on appeal to 18U.S.C. § 9 2 2 (g ) as unconstitutional under the Commerce Clause in the event of en banc or S u p re m e Court review. As he recognizes, his argument was raised and rejected in U n ite d States v. Singletary, 268 F.3d 196 (3d Cir. 2001), and it is settled that, absent intervening authority, a panel cannot disturb prior precedent of this court. Reich v. D.M.

S a b ia 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 th e above reasons, we will affirm the judgment of conviction and sentence.

* Hon. Louis H. Pollak, Senior Judge, United States District C o u rt for the Eastern District of Pennsylvania, sitting by d e s ig n a tio n .