Facts
In 2016, Michael Mosley was a felon and an admitted drug user. Two girlfriends stated that he frequently was seen with a gun. Two days before his mother was killed, girlfriend A saw him with a gun when they went to a casino in Vicksburg.
The next day, girlfriend B saw him with a black gun at his mom’s house. Mosley and girlfriend B left the house but Mosley returned later that evening with girlfriend B to drop off a car. Moseley went inside to get a phone while girlfriend B waited outside for 30 minutes for him and then left without him.
During the two hours she was at home after that, girlfriend B saw Mosely driving away from his mom’s house and then heard ambulances. At 2:23 a.m., Mosley called 911 and said his mother had been shot and he didn’t know who did it. Police arrived and discovered his mother had been shot at close range four times and was dead.
A black duffle bag containing clothes and costume jewelry was found at the scene along with shell casings and live bullets but no gun. Officers found no signs of a break in and his mother’s wallet had $100 in it.
Two hours after officers placed Mosley in a police car in handcuffs at the scene, he was taken to the police station. He was not interviewed because police believed he was under the influence of drugs and the police said that he was not under arrest. However, they did collect gun shot residue (GSR) samples from his hand which revealed positive GSR that was no more than four hours old.
A year after her death, a plastic bag containing a rusty gun was found on the side of the road. It was the mother’s gun but it could not be determined whether it was used in the murder. Mosley was convicted for the murder of his mother and sentenced to life. On appeal, he argued that the taking of GSR was a violation of his 4th and 5th amendment rights. MCOA affirmed.
Analysis
A. GSR and 5th amendment
Gunshot residue samples collected by law enforcement are evidence that is not testimonial in nature and thus admissible with no breach of the Fifth Amendment even if the defendant refuses to submit to a gunpowder test.
Why is this? Much like fingerprints or a handwriting sample, GSR does not require testimony from the defendant. He doesn’t tell you something that incriminates himself (like a confession).
B. GSR and 4th amendment
MCOA couldn’t answer this question because they didn’t have enough information from the record.
Clearly, he was handcuffed, placed in Trotter’s police car, and taken to the police station. Under such circumstances, it would appear that Mosley was not free to leave and was in fact, in police custody although Trotter testified that Mosley was not under arrest. Such facts support Mosley’s argument that he had been seized under the Fourth Amendment.
Officer Williams testified that Mosley was not questioned because he was under the influence. But there was no testimony as to whether Mosley was able to or did consent to the gunshot residue test. The record before us contains no other testimony as to what law enforcement did, at what time, and why.
Whether police had probable cause to take and hold Mosley in their custody and/or whether they had any constitutionally sound reason for taking the samples for the gunshot residue test cannot be determined from the record before us. A hearing would be needed where Trotter and others could testify as to their actions and rationale for them. Even the State agrees that this issue may best be preserved for a Post Conviction Relief.
(In cases such as Longstreet vs. State, 592 So. 2d 16 (Miss. 1991) and Ashley v. State, 423 So. 2d 1311 (Miss. 1983), the MSC found it acceptable for blood samples to be taken from defendants who were not formally under arrest, saying that it could still determine from law enforcement testimony in the record that they had probable cause to detain the defendants nonetheless. Our record here contains no such testimony for us to make such a ruling).
Thoughts
I decided to post this case despite the incomplete analysis on the 4th amendment because I think there are some good takeaways:
- Despite the officer’s subjective belief that Mosley was not being arrested, it is pretty clear that handcuffing Mosley for 2 hours in a police car after a murder and then taking him to the police station would be at the very least “the functional equivalent” of an arrest to most Judges;
- As you can see above, GSR isn’t a 5th amendment concern but it is a 4th amendment concern. Consent for GSR won’t work here since you are not interviewing him because of your belief that he is on drugs (he cannot knowingly, intelligently, and voluntarily waive his rights and give a statement). You would have the same issue for GSR. So what are our best options to get the GSR here? It would appear you could either a) get a warrant or b) argue exigent circumstances.
- Talking to your prosecutor or legal counsel is vital in murder cases when issues like these occur. Also, you need to document why you took the actions you did. If you don’t document what you are doing and why, you are leaving the door open for a court to come to a conclusion that is not favorable for your case.
https://courts.ms.gov/Images/Opinions/CO150454.pdf