United States v. Lyndon Miller , 641 F. App'x 242 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4158
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LYNDON FACISCO MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:13-cr-00342-MJG-1)
Submitted: February 29, 2016 Decided: March 10, 2016
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael D. Montemarano, MICHAEL D. MONTEMARANO, PA, Columbia,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Christopher J. Romano, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Lyndon Facisco Miller of (1) conspiracy to
distribute and possess with intent to distribute 1 kilogram or
more of heroin, 500 grams or more of cocaine, and 28 grams or
more of cocaine base, in violation of 21 U.S.C. § 846 (2012);
(2) possession with intent to distribute 100 grams or more of
heroin, 500 grams or more of cocaine, and 28 grams or more of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2012), 18
U.S.C. § 2 (2012); (3) two counts of distribution of a substance
containing a detectable amount of heroin, in violation of 21
U.S.C. § 841(a)(1), 18 U.S.C. § 2; (4) distribution of 100 grams
or more of heroin, in violation of 21 U.S.C. § 841(a)(1), 18
U.S.C. § 2; and (5) felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (2012). On appeal, Miller
challenges the district court’s denial of three of his motions
to suppress evidence under the Fourth Amendment and the court’s
determination that he knowingly, voluntarily, and intelligently
asserted his right to represent himself at trial. 1 We affirm.
1 Miller has filed three motions to file pro se supplemental
briefs and motions to amend supplemental briefs. Because Miller
is represented by counsel who filed a merits brief, we deny his
motions. See United States v. Penniegraft, 641 F.3d 566, 569
n.1 (4th Cir. 2011) (denying motion to file pro se supplemental
brief because appellant was represented by counsel and appeal
was not submitted pursuant to Anders v. California, 386 U.S. 738
(1967)).
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I
When considering the denial of a suppression motion, we
review de novo the district court’s legal conclusions and review
its factual findings for clear error. United States v. Guijon-
Ortiz, 660 F.3d 757, 762 (4th Cir. 2011). Because the
Government prevailed on the suppression issue below, we construe
the evidence in the light most favorable to the Government.
United States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004).
First, Miller challenges the district court’s denial of his
motion to suppress telephonic and electronic evidence recovered
from the wiretapping of several phone lines he allegedly used.
In denying Miller’s motion, the district court determined that
the warrant application was supported by probable cause, that
the level of particularization in the warrant was reasonable
given one of the issuing judge’s weekly supervision over the
investigation, and that officers acted in good-faith reliance on
the warrant. On appeal, Miller does not present an argument
regarding the district court’s conclusion that officers relied
in good faith on the state judge’s issuance of the warrant.
Accordingly, Miller has waived appellate review of the district
court’s denial of his motion to suppress telephonic and
electronic evidence pursuant to wiretap warrants. See United
States v. Bartko, 728 F.3d 327, 335 (4th Cir. 2013) (holding
appellant’s failure to include “‘contentions and the reasons for
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them, with citations to the authorities . . . on which the
appellant relies’” in opening brief results in waiver of issue
(quoting Fed. R. App. P. 28(a)(8)); see also United States v.
Bynum, 293 F.3d 192, 194 (4th Cir. 2002) (where defendant
challenges probable cause supporting warrant and officer’s good-
faith reliance on warrant, court may skip directly to good-faith
analysis as finding of good faith is sufficient to reject
exclusion of evidence).
Second, Miller challenges the district court’s denial of
his motion to suppress tracking evidence recovered from the
attachment of Global Positioning Systems (GPS) devices to rental
vehicles operated by Miller. The district court denied Miller’s
motion, concluding that a reasonable construction of the warrant
permitted attachment of GPS devices to all rental vehicles
Miller used and that the motion appeared moot where the
Government represented that it did not intend to present
tracking evidence from any GPS devices attached to rental
vehicles used by Miller. On appeal, Miller does not challenge
the district court’s holding that the motion was moot as a
result of the Government’s representation. Accordingly, Miller
has waived appellate review of the denial of his motion to
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suppress tracking evidence recovered from the GPS searches. 2 See
Bartko, 728 F.3d at 335.
Third, relying on Riley v. California, 134 S. Ct. 2473
(2014), Miller challenges the district court’s denial of his
motion to suppress evidence recovered from six cell phones
recovered and activated contemporaneously with his arrest in
2013. The district court denied the motion because then-
existent law permitted the search.
The exclusionary rule prohibits introducing “evidence
obtained in violation of a defendant’s Fourth Amendment rights,
but the sole purpose of the rule is to deter future Fourth
Amendment violations, and its application properly has been
restricted to those situations in which its remedial purpose is
effectively advanced.” United States v. Stephens, 764 F.3d 327,
335 (4th Cir. 2014) (citations and internal quotation marks
2Even if the issue was not waived, we would conclude that a
reasonable construction of the warrant application and order
permitted officers to attach GPS devices to future cars Miller
rented and not just to the specific rental vehicles identified
in the warrant application as vehicles Miller rented in the
past. See United States v. Ventresca, 380 U.S. 102, 108 (1965)
(“[A]ffidavits for search warrants . . . must be tested and
interpreted by magistrates and courts in a commonsense and
realistic fashion.”). Any alternative interpretation of the
warrant would have defeated issuance of the warrant because
neither the attesting officers nor the issuing judge possessed
any ability to anticipate what specific rental car the rental
car companies Miller frequented might assign Miller in the
future.
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omitted), cert. denied, 136 S. Ct. 43 (2015). “[W]hen the
police act with an objectively reasonable good-faith belief that
their conduct is lawful, . . . the deterrence rationale loses
much of its force, and exclusion cannot pay its way.” Davis v.
United States, 564 U.S. 229, , 131 S. Ct. 2419, 2427-28
(2011) (citations and internal quotation marks omitted). As a
result, the exclusionary rule does not apply to searches
conducted in accordance with then-binding appellate precedent,
even if that precedent is later overruled. Id. at 2423-24.
Here, Riley was decided over a year after the search Miller
challenges. At the time of the search, both the law of this
Circuit and Maryland law permitted a warrantless search of a
cell phone in the course of an inventory search incident to
arrest. See United States v. Murphy, 552 F.3d 405, 411-12 (4th
Cir. 2009) (“The need for the preservation of evidence justifies
the retrieval of call records and text messages from a cell
phone or pager without a warrant during a search incident to
arrest.”); Sinclair v. State, 76 A.3d 442, 454 (Md. 2013)
(positively citing Murphy and holding “limited and immediate”
warrantless search of cell phone is “valid search incident to
arrest”). Accordingly, pursuant to the rule established in
Davis, the district court properly denied Miller’s motion to
suppress evidence collected as a result of the activation of his
cell phones.
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II
The Sixth Amendment guarantees criminal defendants the
right to counsel, and, if indigent, the right to appointed
counsel. Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963).
The Sixth Amendment’s guarantee of counsel also “necessarily
implies the right of self-representation.” Faretta v.
California, 422 U.S. 806, 832 (1975). The right to self-
representation “must be preserved even if the court believes
that the defendant will benefit from the advice of counsel.”
United States v. Singleton, 107 F.3d 1091, 1095–96 (4th Cir.
1997). We review de novo the determination that Miller waived
his right to counsel. Id. at 1097 n.3.
A defendant who asserts the right of self-representation
must do so (1) clearly and unequivocally; (2) knowingly,
intelligently, and voluntarily; and (3) in a timely fashion.
United States v. Frazier–El, 204 F.3d 553, 558 (4th Cir. 2000).
“The requirement that the assertion be clear and unequivocal is
necessary to protect against an inadvertent waiver of the right
to counsel by a defendant’s occasional musings” and “prevents a
defendant from taking advantage of and manipulating the mutual
exclusivity of the rights to counsel and self-representation.”
United States v. Bush, 404 F.3d 263, 271 (4th Cir. 2005)
(internal quotation marks omitted). A defendant “should be made
aware of the dangers and disadvantages of self-representation,
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so that the record will establish that he knows what he is doing
and his choice is made with eyes open.” Faretta, 422 U.S. at
835 (internal quotation marks omitted).
In granting the motion, the district court (1) assured that
Miller was mentally competent to represent himself;
(2) questioned existing counsel regarding Miller’s ability to
comprehend and speak English; (3) advised Miller several times
regarding the advantages of proceeding with counsel;
(4) discussed with Miller the option of having stand-by counsel
and how stand-by counsel could assist him; and (5) confirmed
that Miller understood the charges he was facing. Miller
repeatedly expressed a desire to represent himself with stand-by
counsel to assist him with the procedural aspects of a trial,
and the district court appointed the stand-by counsel Miller
requested. Accordingly, we conclude that the district court
engaged in the required inquiry and that Miller knowingly,
voluntarily, and intelligently asserted his right to self-
representation.
Therefore, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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