UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                     No. 95-5596

OMAR A. MUDIE,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CR-94-77)

Argued: July 18, 1996

Decided: September 5, 1996

Before MURNAGHAN and ERVIN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Reversed by unpublished opinion. Judge Ervin wrote the opinion, in
which Judge Murnaghan and Senior Judge Phillips joined.

_________________________________________________________________

COUNSEL

ARGUED: Vincent L. Gambale, Assistant United States Attorney,
Alexandria, Virginia, for Appellant. Benedict P. Kuehne, SALE &
KUEHNE, P.A., Miami, Florida, for Appellee. ON BRIEF: Helen F.
Fahey, United States Attorney, Alexandria, Virginia; Robert E. Bra-
denham, II, Assistant United States Attorney, Norfolk, Virginia, for
Appellant.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Following his convictions on crack-cocaine charges, appellee Omar
Mudie moved for a new trial. The district court granted his motion,
based on evidence of a gun that was admitted and then excluded, and
the prosecutor's alleged references to that evidence during closing
argument. The United States appeals. Because we find that evidence
of the gun should not have been excluded in the first instance, we find
that any reference to that evidence was harmless. Accordingly, we
reverse the district court's grant of a new trial.

This case began when a maintenance man entered an apartment to
make a repair, and observed what he thought to be drugs. He also
noticed that the apartment had almost no furniture, and that its win-
dows were covered with cardboard and tape. He notified the police,
who obtained a search warrant for the apartment. In executing the
warrant, the police observed minimal furnishings, no food and few
dishes in the kitchen, and only a few pieces of clothing. During the
search, Mudie put his key into the door of the apartment and the
police arrested him. The search yielded a number of items of evi-
dence: on Mudie's person were two pagers, a cellular telephone, nine
$50 bills, and a key ring. In the apartment, police found 3.6 kilos of
crack and .9 kilos of powder cocaine; drug paraphernalia, including
electronic scales, coffee pots without coffee makers, and baking soda;
a cellular phone battery and charger compatible with Mudie's cell
phone; a credit card application with Mudie's name; and a $500 check
drawn on Mudie's account. Later, police discovered Mudie's finger-
prints on one of the coffeepots. George McNeil, a convicted cocaine
dealer, testified at trial that he had bought crack from Mudie on a
number of occasions.

During the initial search, the police also examined Mudie's key
ring, which had a "Mazda" key. They discovered one Mazda car

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parked near the apartment. When officers searched the car, they found
a loaded .38 semi-automatic handgun in the map pocket behind the
driver's seat, and Mudie's checkbook on the floorboard. Mudie was
indicted on two counts of distributing crack, one count of possession
of cocaine with intent to distribute, and one count of possession of
crack with intent to distribute. He moved to suppress a number of
items of evidence, including the crack and cocaine discovered during
the search of the apartment, an oral statement he made following his
arrest, and the weapon recovered during the search of his car. The dis-
trict court (Judge Clarke) denied the motion to suppress. Mudie's first
trial ended in a hung jury.

At his second trial, the district court (Judge Jackson) refused to
grant Mudie's renewed motion to suppress, except as to the post-
arrest statement. Near the close of the government's evidence, the dis-
trict court decided that the gun had been improperly admitted, and
instructed the jury to disregard it. Judge Jackson found that the police
did not have probable cause to search Mudie's car; the court recog-
nized that the police could have conducted an inventory search in the
interest of safeguarding Mudie's property, but found that their actual
motive was to find evidence against Mudie. The court cautioned the
jury:

          During this trial you have heard testimony about the search
          of the defendant's automobile and the recovery of a gun.
          Additionally, you have heard testimony about the role that
          a firearm plays in the distribution of illegal narcotics. I
          instruct you that you are to totally disregard the testimony,
          as well as the firearm exhibit that was introduced in this
          record. The testimony that was introduced about the firearm,
          the search of the vehicle, as well as the exhibit, should not
          be considered in any way in your determination of a verdict
          in this case.

          For you to in any way consider this evidence I am asking
          you to disregard would be a violation of the oath that you
          have taken as a juror, and I will give you the same instruc-
          tion again prior to the time that you begin to deliberate.

In his closing argument, the prosecutor commented,"Here's a man
that is visiting an apartment armed with two pagers, cellular tele-

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phones, $450 in cash . . . ." In his rebuttal, the prosecutor stated, "Pag-
ers, telephones, coupled with the $450, that's what he had, that's what
he was armed with, that's what he had on his person when he went
to that apartment on November 14th." Mudie's counsel did not object
contemporaneously and the district court rejected Mudie's objection
to these comments on the following day. Mudie was convicted on all
charges, and moved for a post-verdict judgment of acquittal, or, in the
alternative, a new trial. The district court ordered a new trial some
three months after the verdict was rendered.

The district court concluded that George McNeil's uncorroborated
testimony was sufficient to support a finding of guilt on the cocaine
distribution charges. As to the possession with intent to distribute
counts, the court noted that the government had to prove Mudie's
constructive possession of the drugs found in the apartment in order
to support conviction on those charges. The court concluded that the
evidence was "barely" sufficient to justify the convictions, but further
concluded that "the slim evidence supporting the verdict weighs in
favor of a finding that the admission of evidence that Mudie pos-
sessed a firearm improperly and significantly influenced the jury's
determination of guilt."

Jurisdiction of this appeal is proper under 18 U.S.C. § 3731, which
authorizes the United States to appeal to this court following a district
court's grant of a new trial after judgment in a criminal case.
Although a district court's grant of a new trial generally is reviewed
for abuse of discretion, United States v. Bynum , 

, 773 (4th
Cir. 1993), cert. denied, 

(1994), purely legal determi-
nations are reviewed de novo, Waters v. Gaston County, 

,
425 (4th Cir. 1995). As explained by the Seventh Circuit, when a dis-
trict court judge considering a new trial motion"has occasion to
resolve a pure issue of law, our review of that resolution is plenary."
United States v. Boyd, 

, 242 (7th Cir. 1995) (citation omit-
ted). Because in this case the district court's ultimate grant of a new
trial stemmed from the legal decision to exclude certain evidence, we
first review that decision.

The "automobile exception" to the Fourth Amendment's warrant
requirement is well-established. The Supreme Court has recently
summarized the exception:

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         Our first cases establishing the automobile exception to the
         Fourth Amendment's warrant requirement were based on
         the automobile's "ready mobility," an exigency sufficient to
         excuse failure to obtain a search warrant once probable
         cause to conduct the search is clear. California v. Carney,
         

, 390-91, 

, 2068-2069, 

(1985) (tracing the history of the exception);
         Carroll v. United States, 

, 

, 

(1925). More recent cases provide a further justi-
         fication: the individual's reduced expectation of privacy in
         an automobile, owing to its pervasive regulation. 

, 105 S.Ct., at 2069-2070. If a car is readily
         mobile and probable cause exists to believe it contains con-
         traband, the Fourth Amendment thus permits police to
         search the vehicle without more. 

, 105
         S.Ct., at 2070.

Pennsylvania v. Labron, 

, 2487 (1996). In Labron, for
instance, the Court upheld the search of a vehicle after police "had
seen [the owner of the vehicle] act in ways that suggested he had
drugs in his truck." 

police had discovered significant evidence of a crack
cocaine processing operation within the apartment, as well as evi-
dence linking Mudie to that apartment. Though the police did not see
Mudie driving the car they eventually searched, they did lawfully find
on his person a "Mazda" key and discovered a single Mazda automo-
bile parked close by, so it was reasonable to assume that Mudie had
arrived at the apartment via that vehicle. Before searching the car,
officers confirmed that the Mazda's tags were registered to Omar
Mudie. We find that this evidence provided probable cause to believe
that the automobile contained contraband, and therefore the police
were entitled to search it without a warrant.*
_________________________________________________________________

*Because the search in this case was justified by the automobile
exception to the Fourth Amendment's warrant requirement, we need not
reach the question of whether it might also have been proper as an inven-
tory search.

                    5
Having determined that the search of Mudie's car was permissible,
we must conclude that there was no basis for exclusion of the evi-
dence seized from that vehicle. Consequently, the district court erred
in suppressing evidence of the gun, and any reference by the prosecu-
tor to the improperly-suppressed evidence (inadvertent or otherwise)
was not error. This leads to the further conclusion that the district
court erred in granting Mudie a new trial on these bases. Accordingly,
the decision below is

REVERSED.

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