United States v. Demetrius Davis ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4782
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
DEMETRIUS DARRELL DAVIS, a/k/a Meatman,
Defendant – Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge. (1:16-cr-00351-CCB-1)
Argued: May 9, 2019 Decided: August 2, 2019
Before DIAZ, FLOYD, and RICHARDSON, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion, in which Judge
Richardson joined. Judge Floyd wrote an opinion concurring in the judgment.
ARGUED: Erek Lawrence Barron, WHITEFORD, TAYLOR & PRESTON, LLP,
Bethesda, Maryland, for Appellant. Derek Edward Hines, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Michael
Lawlor, BRENNAN, MCKENNA & LAWLOR, CHTD., Greenbelt, Maryland, for
Appellant. Robert K. Hur, United States Attorney, Jason D. Medinger, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DIAZ, Circuit Judge:
Demetrius Davis was convicted on a drug conspiracy charge and sentenced to ten
years in prison. He filed two suppression motions before trial, one alleging an illegal
wiretap of his phone and the other alleging an illegal search of a vehicle. The district court
denied both motions, and Davis now appeals. We affirm the judgment.
I.
A.
Davis’s prosecution arose from a joint federal–state investigation of a cocaine
trafficking ring on Maryland’s Eastern Shore. The investigation originally focused on
Tarron Fletcher, Tyandre Johnson, and several of their associates. For several years, law
enforcement agents used traditional investigative methods against those suspected
traffickers, including controlled buys with confidential sources, pen registers, GPS
trackers, pole cameras, trash pulls, and package searches at the Post Office. By 2016, they
had gathered enough evidence to indict the known conspirators on drug charges. But the
agents sought more evidence to take down “the organization as a whole.” J.A. 74.
In pursuit of that goal, they applied for a wiretap of Johnson and Fletcher’s phones.
In their application, the agents explained why traditional investigative techniques would
not reveal the cocaine supplier. In their estimation, confidential sources or undercover
officers couldn’t get close to sources of supply; visual surveillance, GPS tracking, trash
pulls, search warrants, and similar methods had failed to reveal anyone higher in the
operation; and no one with knowledge of the conspiracy was likely to testify under oath.
3
A federal magistrate judge agreed and approved the wiretap application under Title III of
the Omnibus Crime Control and Safe Streets Act of 1968.
When the wiretap was approved, agents were not aware of Davis or his role in the
conspiracy. But through the wiretap, they captured several phone and text conversations
involving Davis. In two calls on the same day, Davis and Fletcher used what appear to be
coded terms (e.g., “that girl Crystal”) to discuss—as the agents interpreted it—the quality
of certain kilograms of cocaine. In later text messages, Davis and Fletcher continued that
discussion and arranged a meeting in which Davis would supply Fletcher with drugs.
Using that information, agents followed Davis as he drove to a meeting with Fletcher.
In another call, Johnson complained to Davis about receiving drugs at inopportune
times and being forced to repay debts early. Soon after, Johnson sent a text message to
Davis reading, “I’m gonna give your money cuz but don’t come around me with drugs no
more man . . . u bad business.” J.A. 153. The agents also used pen registers and toll
analysis to generate a list of calls between members of the conspiracy.
Suspecting that Davis was supplying cocaine to Fletcher and Johnson, agents sought
a Title III wiretap order for Davis’s cellphone. In the affidavit supporting their wiretap
application, the agents admitted that (for the most part) they had not tried traditional
investigative techniques against Davis. But they detailed why such techniques would likely
fail if tried.
In the agents’ understanding, existing confidential sources had no access to Davis
and, given his role in the conspiracy and the rural area where he lived, it wouldn’t be
feasible to get a confidential source or undercover officer near him. Several factors would
4
have made visual surveillance ineffective: cars or officers would stand out in a rural area,
Davis used several different cars, and the conspirators had employed countersurveillance
tactics to avoid being followed. The agents didn’t have enough information to know where
Davis kept his suspected supply, so search warrants would have been ineffective.
Interviews and subpoenas were unlikely to get anyone with knowledge of the conspiracy
to testify (much less to testify honestly). Trash searches and pole cameras would be
impractical at Davis’s remote house. Pen registers, toll analysis, and mail covers 1 were
unlikely to generate useful information. And neither the original wiretap nor a financial
investigation of the conspirators was bearing further fruit.
A federal magistrate judge authorized the wiretap on Davis’s phone, finding that
there was probable cause that he was involved in the drug conspiracy and that a wiretap
was necessary because other methods were unlikely to succeed. Using information from
that wiretap and from GPS tracking of Davis’s Mercedes, agents observed what they
believed to be Davis supplying drugs to his coconspirators. 2 They also took aerial and
ground-based photos and video of Davis’s property. With this new evidence, they obtained
federal search warrants for Davis’s house and for his Mercedes.
1
Federal investigators may ask the Post Office to generate a “mail cover,” which is
a compiled list of the names and addresses on all USPS mail sent to a particular address.
See 39 C.F.R. § 233.3.
2
The agents had state court authorization to place a GPS tracker on the Mercedes
before they applied for a wiretap order. But they didn’t place the tracker on the car until
after the wiretap was approved.
5
A team of agents executed the search warrants early one morning. Several agents
entered Davis’s house, separating Davis and his girlfriend for questioning. Davis orally
acknowledged that he had been advised of his Miranda rights, and he responded to
questions without invoking his rights. A detective asked Davis about a white box truck
parked in his driveway, which investigators had seen on the premises before. Davis denied
ownership (or even knowledge) of the truck. But after questioning Davis, the detective
found the truck’s keys in Davis’s house.
While some agents searched the house, a K9 officer walked a drug-sniffing dog
around the back of Davis’s property and the vehicles parked there. After the detective
found the keys, he asked the K9 officer to bring the dog to the truck parked in the driveway.
The dog alerted to the smell of narcotics, and the agents opened the truck. Inside, they
found a small quantity of cocaine and $625 in cash.
B.
A federal grand jury indicted Davis, Johnson, and Fletcher on one count of
conspiracy to distribute and possess with intent to distribute 500 or more grams of cocaine.
See 21 U.S.C. §§ 841(a)(1), 846. Johnson and Fletcher pleaded guilty. Davis pleaded not
guilty and filed two suppression motions. The first motion alleged that the wiretap of
Davis’s phone lacked probable cause and that none of the wiretaps obtained by the agents
were necessary. The second motion alleged that the search of the truck on Davis’s property
violated the Fourth Amendment. The district court denied both suppression motions.
First, the district court addressed the wiretaps of Johnson and Fletcher’s phones. It
held that those wiretaps were necessary because they were the only way to identify the
6
conspirators’ source of supply. Then, the district court addressed the wiretap of Davis’s
phone. It held that there was probable cause for the wiretap and that it was necessary
because other investigative methods would have been ineffective. Last, the district court
addressed the search of the truck, concluding that there was no Fourth Amendment
violation because Davis had no reasonable expectation of privacy in the truck after denying
that he had any interest in it. As an alternative to that holding, the district court held that
the warrant and the automobile exception to the warrant requirement each independently
justified the search.
A jury convicted Davis of conspiracy. The district court sentenced him to ten years
in prison followed by five years of supervised release. This appeal followed.
II.
Davis’s first ground for appeal concerns his motion to suppress conversations
captured via the Title III wiretaps. Title III allows the government to ask a federal district
court for a wiretap order during investigations of certain crimes. 18 U.S.C. § 2516(1). To
approve the order, the district court must make several findings. Id. § 2518(3). Three of
the required findings are at issue in this appeal, findings that: (1) there is probable cause
that the target individual has committed or will commit a crime enumerated in Title III; (2)
there is probable cause that the wiretap will intercept communications about that crime;
and (3) normal investigative procedures have failed, would be too dangerous, or reasonably
appear unlikely to succeed. Id. § 2518(3)(a)–(c). The government must supply an affidavit
with evidence sufficient to support these findings. Id. § 2518(1).
7
Davis contends that the government lacked probable cause to wiretap his phone and
that neither the original wiretap of Johnson and Fletcher nor the subsequent wiretap of
Davis was necessary. As we explain, however, we hold that the district court did not err
by denying this suppression motion. 3
A.
Though Davis primarily challenges the wiretap of his phone, he also appears to
contest the necessity of wiretapping Johnson and Fletcher’s phones. 4 As he argued in the
district court, Davis appears to contend on appeal that those wiretaps weren’t necessary
because agents had already uncovered substantial evidence against Johnson and Fletcher
by traditional means. The district court concluded that the wiretaps were necessary,
however, because traditional methods had failed to reveal Johnson and Fletcher’s source
of supply.
We review a district court’s determination of necessity under Title III for abuse of
discretion. United States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007). Though the
3
As an alternative ground for affirming, the government contends that suppression
is unwarranted because agents relied on the wiretap orders in good faith. Because we hold
that the orders satisfy Title III’s requirements, we don’t address whether the good faith
exception applies to statutory suppression under Title III.
4
A criminal defendant must be an “aggrieved person” to move to suppress under
Title III, 18 U.S.C. § 2518(10)(a), defined as “a person who was a party to any intercepted
wire, oral, or electronic communication or a person against whom the interception was
directed,” id. § 2510(11). Davis says he is an aggrieved person because his
communications were intercepted during the wiretap of Johnson and Fletcher. The
government does not dispute that characterization, so we will assume it to be true for
purposes of this appeal.
8
government must provide specific facts—not boilerplate—showing necessity, we owe
“considerable deference” to the district court’s determination. United States v. Oriakhi, 57
F.3d 1290, 1298 (4th Cir. 1995) (quoting United States v. Smith, 31 F.3d 1294, 1298 (4th
Cir. 1994)). It is appropriate to consider necessity “in a practical and commonsense fashion
that does not hamper unduly the investigative powers of law enforcement agents.” Wilson,
484 F.3d at 281 (quoting Smith, 31 F.3d at 1297). The government’s burden to prove
necessity therefore “is not great.” Id. at 281 (quoting Smith, 31 F.3d at 1297).
It is true that even before the wiretaps, agents likely had enough evidence to support
charges against Johnson and Fletcher. But the agents’ goal was to find Johnson and
Fletcher’s supplier and to uncover the full trafficking conspiracy. In their affidavit, the
agents sufficiently demonstrated that the methods they had tried—confidential sources,
trash pulls, visual surveillance, package searches, etc.—didn’t reveal Johnson and
Fletcher’s source of supply.
In many other cases, we have affirmed wiretaps intended to reveal the higher levels
of a conspiracy when ordinary investigative methods could not reach them. See, e.g.,
United States v. Galloway, 749 F.3d 238, 242–43 (4th Cir. 2014); Smith, 31 F.3d at 1297–
98; United States v. Leavis, 853 F.2d 215, 222 (4th Cir. 1988); United States v. Clerkley,
556 F.2d 709, 714–15 (4th Cir. 1977). As in those precedents, the wiretap order was
appropriate in this case because the government demonstrated that ordinary methods had
failed or would likely fail to reveal the source of Johnson and Fletcher’s supply.
B.
9
We turn next to Davis’s challenge to the wiretap of his own phone. Davis gives two
reasons for why the district court erred. First, he says that the wiretap application did not
sufficiently allege probable cause. Second, he says that the application did not sufficiently
allege that a wiretap was necessary. We disagree with Davis on both issues.
1.
The probable cause standard for a Title III wiretap order is the same as the probable
cause standard for a warrant. United States v. Talbert, 706 F.2d 464, 467 (4th Cir. 1983).
Probable cause for a wiretap order thus exists when the facts warrant a person “of
reasonable caution to believe that an offense has been or is being committed.” Berger v.
New York, 388 U.S. 41, 55 (1967). On appeal, we afford “[g]reat deference” to the
magistrate judge’s assessment of the facts and ask only “whether the magistrate had a
substantial basis for his conclusion that probable cause existed.” United States v. Williams,
974 F.2d 480, 481 (4th Cir. 1992).
We agree with the district court that the magistrate judge had a substantial basis for
concluding that there was probable cause to support the wiretap of Davis’s phone. The
calls and texts intercepted through the wiretaps of Fletcher and Johnson’s phones strongly
suggested that Davis was involved in drug trafficking. For example, the agents captured
calls between Fletcher and Davis in which the men used a fairly transparent code word—
“crystal”—to discuss concerns about the quality of cocaine in their possession. The
conversations suggested that Davis supplied cocaine to Fletcher, and in one call, Davis
appeared to reiterate trafficking-related conversations he’d had with other people. After
that, text messages between Davis and Fletcher appeared to describe (in coded language)
10
an arrangement in which Davis would supply narcotics to Fletcher. In another call,
Johnson complained that Davis was requiring Johnson to receive drugs without notice and
asking for repayment of drug debts at inopportune moments. And in a subsequent text,
Johnson told Davis that he would repay his debts but didn’t want to receive any further
supplies of drugs. These conversations would lead a reasonable person to believe that
Davis was participating in the drug crimes under investigation, which suffices to establish
probable cause to wiretap his phone.
Davis urges us not to rely on the agents’ understanding of the coded terms. But the
agents’ interpretation of the coded terms—which ties the wiretapped conversations to
cocaine trafficking—was reasonable. The coded language was fairly transparent, after all.
See, e.g., J.A. 141 (“She’s just straight like Crystal. She ain’t really got too much smell to
her at all. . . . I picked one up and put it on my tongue . . . she took a while just to you know,
to numb it.”). And we agree that the wiretapped conversations suggest that Davis was
involved in drug trafficking.
2.
Davis also challenges the district court’s conclusion that the wiretap of his phone
was necessary. The government concedes that it didn’t perform a traditional investigation
of Davis before seeking a wiretap for his phone. So, the question is whether the
government proved that normal investigative methods reasonably appeared unlikely to
succeed. As noted, our review of the necessity determination is deferential. See Wilson,
484 F.3d at 280; Oriakhi, 57 F.3d at 1298.
11
The government made a sufficient showing that ordinary methods would have been
ineffective against Davis. Because of where Davis lived, and his suspected role as a
supplier for the conspiracy, getting a confidential source or undercover officer near him
would not have been feasible. Visual surveillance, cameras, and trash pulls would likely
have been ineffective and risky because of the remote location of his house. Interviews
and subpoenas were unlikely to yield honest testimony. And agents lacked enough
information to use search warrants effectively.
Davis contends that because some ordinary investigative methods were successful
against Johnson and Fletcher, who lived in the same area as Davis, they likely would have
been successful against Davis too. True, ordinary methods had revealed small-scale drug
dealing by Johnson and Fletcher. But they had not led agents to their source of supply, and
the agents reasonably concluded that they would not have revealed anything useful about
Davis, who appeared (based on the wiretapped conversations) to be the supplier. To the
extent that other methods, such as visual surveillance or GPS tracking, were useful later in
the investigation of Davis, it was only because of information obtained from the wiretap. 5
5
Davis points to a case in which the Ninth Circuit held that the government failed
to prove necessity when it applied for a wiretap order after only minimal investigation.
United States v. Gonzalez, Inc., 412 F.3d 1102, 1114–15 (9th Cir. 2005). But there, the
Ninth Circuit reviewed whether the wiretap application complied with Title III de novo,
id. at 1111, and it considered several unused investigative methods to be promising, id. at
1114–15. We (on the other hand) apply a deferential standard of review to the question of
necessity. And, unlike in Gonzalez, none of the unused investigative methods in this case
appear to have been promising.
12
The government supported its need for a wiretap of Davis’s phone with specific
facts showing why other investigative methods reasonably appeared unlikely to succeed.
As a result, the district court didn’t abuse its discretion in finding that the wiretap was
necessary.
III.
Davis next argues that the search of the truck on his property violated his Fourth
Amendment rights. The district court held (and we agree) that Davis’s Fourth Amendment
challenge fails because he lacked a reasonable expectation of privacy in the truck. 6
A district court may only suppress evidence on the basis that a search was
unconstitutional if the search “infringed an interest of the defendant which the Fourth
Amendment was designed to protect.” Rakas v. Illinois, 439 U.S. 128, 140 (1978). In this
threshold inquiry (sometimes called Fourth Amendment standing), the defendant has the
“burden of establishing that he had a reasonable expectation of privacy” in the area or
object searched. United States v. Stevenson, 396 F.3d 538, 547 (4th Cir. 2005); see Byrd
v. United States, 138 S. Ct. 1518, 1530 (2018) (“[A] person must have a cognizable Fourth
Amendment interest in the place searched before seeking relief for an unconstitutional
search . . . .”).
6
Given our holding on this issue, we don’t reach the government’s alternative
arguments that the warrant covered the truck, that the search fell within the automobile
exception, or that the officers relied in good faith on the warrant or on judicial precedents.
13
If the defendant lacked (or abandoned) a reasonable expectation of privacy in the
area or object searched, a motion to suppress evidence from that search fails as a matter of
law. See United States v. Williams, 538 F.2d 549, 550–51 (4th Cir. 1976). We review the
district court’s legal conclusions about expectations of privacy de novo and its factual
findings for clear error. Han, 74 F.3d at 541, 544–45.
Under our precedent, a person abandons any reasonable expectation of privacy in
certain property for Fourth Amendment purposes when his words or actions can reasonably
be understood to disclaim any privacy interest in that property. See United States v. Leshuk,
65 F.3d 1105, 1111 (4th Cir. 1995) (“[A] person who voluntarily abandons property loses
any reasonable expectation of privacy in the property and is consequently precluded from
seeking to suppress evidence seized from the property.”). In United States v. Han, for
example, we concluded that a defendant abandoned any privacy interest in a suitcase found
next to him in his home by denying that the bag was his. 74 F.3d 537, 540, 544–45 (4th
Cir. 1996). In a similar case, we determined that a defendant abandoned his privacy interest
in a briefcase and a typewriter case found in his hotel room when he claimed that they “did
not belong to him and that he had no idea to whom [they] belonged.” Williams, 538 F.2d
at 550–51. We have reached the same conclusion in cases where defendants have
disclaimed ownership of bags that otherwise appeared to belong to them. 7
7
See Leshuk, 65 F.3d at 1110–11 (backpack and garbage bags found by defendant);
United States v. Clark, 891 F.2d 501, 506 (4th Cir. 1989) (suitcase found at airport baggage
claim which matched defendant’s baggage claim check); United States v. Washington, 677
F.2d 394, 395–96 (4th Cir. 1982) (suitcase in defendant’s possession at the airport); cf.
United States v. McNeil, No. 92-5421, 1993 WL 347524, at *3 (4th Cir. Sept. 7, 1993)
14
In this case, Davis expressly disclaimed possession (or even knowledge) of the
truck. J.A. 427 (“It’s not my white box truck. I don’t know anything about it.”). His words
mirror the language we have found to constitute abandonment of a privacy interest in an
object. See, e.g., Han, 74 F.3d at 540 (“Han responded that it was not his bag . . . .”);
Williams, 538 F.2d at 550 (“Defendant informed the agents that [the typewriter case] did
not belong to him and that he had no idea to whom it belonged.”); Washington, 677 F.2d
at 395 (“It’s not my bag. I don’t care what you do . . . .”). While these precedents
concerned bags, the same principle should apply to cars. Vehicles are chattel possessions
like bags, and individuals generally don’t have greater privacy interests in vehicles than in
other possessions.
Davis contends that this court uses a multifactor test to determine if a defendant had
a reasonable expectation of privacy. In his view, relevant factors include the location of
the truck, the fact that investigators had seen it on Davis’s property before, and the key
found inside Davis’s house. As a general principle, we do employ a multifactor test. See,
e.g., United States v. Castellanos, 716 F.3d 828, 833–34 (4th Cir. 2013); United States v.
Horowitz, 806 F.2d 1222, 1225 (4th Cir. 1986). But we have not done so when a defendant
disclaims any interest in an object. See, e.g., Han, 74 F.3d at 544–45; Leshuk, 65 F.3d at1110–11; Williams, 538 F.2d at 550. Instead, we have found the disclaimer dispositive,
even if agents have reason to know that the defendant does in fact own the property to be
(driver and passengers had no privacy interest in a motel key found in a search of the car
they were in because they all said the key wasn’t theirs).
15
searched. 8 See Han, 74 F.3d at 544–45. Because Davis disclaimed any interest in the box
truck, the district court correctly denied his motion to suppress the drugs seized from the
truck.
IV.
For the reasons given, we affirm the district court’s judgment.
AFFIRMED
8
Davis also makes a brief argument that he didn’t disclaim ownership of the truck.
As Davis would have it, the detective asked him about a white box truck in his driveway
when, in Davis’s view of the facts, the truck was actually parked on the property of the
neighboring lot. Thus, Davis says his refusal to admit ownership of a truck in his driveway
didn’t extend to a truck that agents found on the adjoining parcel. The problem for Davis
is that the district court found that the “white box truck was parked such that it was at least
partly on the gravel driveway” of Davis’s property. J.A. 624. The court’s finding is not
clearly wrong, so we will not disturb it. See Leshuk, 65 F.3d at 1111.
16
FLOYD, J., concurring in the judgment:
I agree that we must, in accordance with our precedent, affirm the district court’s denial
of Davis’s motion to suppress. But with great respect for my good colleagues, I am not
convinced that our precedent requires us to hold that a person categorically abandons her
interest in her property when she disclaims ownership of the property prior to a search by
law enforcement, such that no circumstances other than the person’s verbal disclaimer are
relevant to the abandonment analysis. While broad wording in some of our cases points in
that direction, it seems to me that we have not subjected the question to a thorough analysis
or made it an explicit holding. Nor, in my view, does the case at hand require us to do so:
the parties have briefed the question only scantily, and even under a totality-of-the-
circumstances approach, I believe we would affirm the district court’s conclusion that
Davis abandoned his truck before it was searched. That being said, I concur in the
judgment.
17