United States v. Dontae Small ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4327
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DONTAE SMALL,
Defendant – Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
James K. Bredar, Chief District Judge. (1:16-cr-00086-JKB-1)
Argued: October 31, 2019 Decided: December 6, 2019
Before WILKINSON, KING, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge King
and Judge Harris joined.
ARGUED: Brandon Lee Boxler, GIBSON, DUNN & CRUTCHER LLP, Washington,
D.C., for Appellant. Sandra Wilkinson, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Paresh S. Patel, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland; David J. Debold, Travis
S. Andrews, Raymond D. Moss Jr., GIBSON, DUNN & CRUTCHER LLP, Washington,
D.C., for Appellant. Robert K. Hur, United States Attorney, Paul A. Riley, Assistant
United States Attorney, Charles Kassir, Law Clerk, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
2
WILKINSON, Circuit Judge:
Following a six-day trial, a jury in the United States District Court for the District
of Maryland found defendant-appellant Dontae Small guilty of federal carjacking, in
violation of 18 U.S.C. § 2119(1); conspiracy to commit carjacking, in violation of 18
U.S.C. § 371; and destruction of government property, in violation of 18 U.S.C. § 1361.
In the proceedings below, Small made several motions relevant to the instant appeal,
all of which were denied by the district court: (1) a motion for judgment of acquittal on the
carjacking and conspiracy charges; (2) a motion to suppress evidence related to a cell phone
search; and (3) a motion to excuse and question two jurors on Sixth Amendment grounds.
Small now appeals these denials and requests that we vacate his convictions. Because we
conclude that the district court did not err in denying these motions, Small’s convictions
are affirmed.
I.
A.
On October 4, 2015, Baltimore resident Brandon Rowe turned around and saw “a
gun in my face.” J.A. 181. Rowe and his fiancée had just returned from vacation to their
house in Baltimore’s Federal Hill neighborhood. It was after 10:00 pm, and there were no
open parking spots in front of their home. They double-parked and quickly unloaded their
car, a silver Acura TSX. Then Rowe drove off alone in search of parking while his fiancée
went into the house. He parked the car in a spot roughly a block away and began walking
back. Within a minute, Rowe was confronted by three masked men, one armed with a “gray
silver gun.” J.A. 182. The gunman demanded that Rowe hand over everything he had.
3
Rowe responded that he had only two sets of keys on him, his car keys and house keys. He
handed over his car keys but told his assailants that he wasn’t giving them his house keys.
The men patted Rowe down and felt his pockets to confirm that he had nothing else of
value. Throughout this entire interaction, the gun remained pointed at Rowe’s face.
After taking Rowe’s car keys, the gunman ordered Rowe to follow his assailants,
who were walking toward the parked car. Rowe refused and instead turned around and
walked home. His assailants did not pursue him. Rowe called 911 after arriving home, and
officers responded rapidly. Later that night, Rowe was driven past the spot where he had
parked his Acura. The car was gone.
Shortly before Rowe was confronted by his three masked assailants, an armed
robbery took place in the same neighborhood. Around 10:00 pm, Hannah Caswell and Joe
Dougherty were walking home from dinner. As Caswell and Dougherty were passing a
white minivan parked on the street, a masked man holding a silver gun stepped out in front
of them and blocked their path. He held the gun to Caswell’s head and demanded that
Caswell and Dougherty empty their pockets. When Dougherty refused to hand anything
over “until the gunmen took the gun out of [Caswell’s] face,” J.A. 238, a second man came
from behind the minivan and ripped open Dougherty’s pocket, causing his cell phone to
fall to the ground. The gunman picked up the phone and both assailants took off running.
The white minivan pulled out of its parking spot and followed. Dougherty and Caswell
used a neighbor’s phone to call the police. Their descriptions of the silver gun and the
assailants were consistent with Rowe’s.
B.
4
On October 7, 2015, three days after the armed robbery and carjacking, a man later
identified as Dontae Small drove a silver Acura into the Arundel Mills Mall parking lot
shortly after 8:00 pm. Security cameras on the premises scanned the car’s license plate,
which revealed that it was Rowe’s stolen Acura. Police were called, and officers from the
Anne Arundel County Police Department set up a perimeter around the parked car and
waited for its driver to return. Small returned to the parking lot at approximately 8:50 pm,
unlocked the Acura, and got into the driver’s seat. At this point, one of the officers pulled
his marked squad car behind the Acura and activated his emergency equipment.
Rather than surrender, Small drove the Acura over a curb and fled the scene.
Numerous officers followed in pursuit, and a high-speed chase ensued. After driving for
nearly five miles, Small sped through the outbound gate at Fort Meade. Once inside Fort
Meade, and with law enforcement still in pursuit, Small drove through a fence surrounding
the National Security Agency (“NSA”) facility and crashed down an embankment. Though
officers arrived at the scene of the crash “within [a] minute,” Small had disappeared. J.A.
63. Small would not be found until he emerged from a nearby sewer around 10:00 am the
following morning.
Unable to immediately locate the driver of the Acura, police called for backup and
began to set up a perimeter. Beginning at around 10:00 pm and continuing for over twelve
hours, approximately 200 state and federal officers conducted an extensive search of the
area. Appellant’s Opening Br. at 9. During this time, the NSA was put “on a lock down”
until authorities could locate the driver. Appellee’s Br. at 28 (quoting Aff. in Supp. Search
Warrant, Dist. Ct. Docket #25, Ex. A).
5
Though the authorities did not immediately locate Small, they did find several items
of interest while searching the NSA grounds. At 1:45 am, officers found a black hat and a
white t-shirt stained with blood near the crash site. Later, at 4:52 am, search personnel
discovered a cell phone on the ground approximately fifty yards from the bloody shirt and
hat. J.A. 30, 32-33. Detective William Bailey of the Baltimore City Police Department, the
lead investigator on Rowe’s carjacking, retrieved the phone and took it to a “floating
command center.” J.A. 30-31.
At the command center, NSA Special Agent Kristel Massengale observed that the
cell phone was receiving calls from a person identified on the screen as “Sincere my Wife.”
J.A. 167-68. At 5:18 am, without obtaining a warrant, Agent Massengale used the phone
to call “Sincere” back. Sincere, whose real name is Kimberly Duckfield, informed Agent
Massengale that the phone belonged to her husband, Dontae Small. Police quickly obtained
a photo of Small and found it matched security footage of the driver from the Arundel Mills
Mall. Based on this evidence, police concluded that Small was likely the driver of the stolen
Acura.
Throughout the early morning hours, officers used the cell phone three more times
without obtaining a warrant. First, at 7:24 am, Detective Bailey called Duckfield and
inquired into whether Small had returned home. Duckfield said no. Next, at 8:21 am,
Duckfield called Small’s phone. Bailey answered and informed Duckfield that police were
looking for Small. Finally, Bailey removed the phone’s back casing and battery to locate
its serial number and other identifying information.
6
At approximately 10:00 am, Small emerged from the sewer system through a
manhole “a little bit” away from the locations of the crash and scattered items. J.A. 42.
Soon after, Small was spotted by NSA Police Officer Hugh McCall, who asked him to
identify himself. Small responded by fleeing on foot. After a brief chase, Officer McCall
caught Small and placed him under arrest.
In the weeks following Small’s arrest, the government obtained three search
warrants relating to his cell phone. The warrant applications contained Small’s name and
the phone’s serial number—information that the government had learned from its use of
the phone during the manhunt. The warrants authorized the government to collect: (1) the
call history, text messages, internet browsing history, contacts, and deleted data from
Small’s phone; (2) the historical cell site location data for Small’s phone; and (3) records
of outgoing and incoming calls for a second cell phone that Small’s phone had called on
the day of the robberies. The government relied on evidence obtained pursuant to these
warrants at Small’s trial.
C.
After his arrest, Small was charged with the carjacking of Rowe’s Acura, in
violation of 18 U.S.C. § 2119(1); conspiracy to commit carjacking, in violation of 18
U.S.C. § 371; and destruction of government property for crashing through the NSA fence,
in violation of 18 U.S.C. § 1361.
The district court empaneled a jury on October 16, 2017, with Small’s trial set to
begin the following day. The next morning, before proceedings began, jurors 5 and 11
approached the Courtroom Deputy to share their concerns that several individuals had been
7
“watching” them as they exited the jury room the previous evening. J.A. 49. The jurors
noted that at least one of these individuals was carrying a cell phone, though they could not
tell if any videos or photographs were taken. The Courtroom Deputy relayed these concerns
to the district judge.
In response, the district judge took two steps. First, he ensured that court security
officers (“CSOs”) were posted outside both the courtroom and the jury room. Second, he
directed the Courtroom Deputy to inform jurors 5 and 11 of the additional security
measures and that any further concerns should be brought to the attention of the CSOs or
the Courtroom Deputy. The district judge did not disclose the extra security precautions to
the rest of the jurors, nor did he inform them of jurors 5 and 11’s concerns. He believed
that doing so could cause “more harm than good” by drawing attention to concerns that
were “of a pretty vague nature” and possibly based on “misperceptions.” J.A. 51-52.
Immediately before opening statements, the district judge informed the parties of this
situation. Small’s counsel had no immediate objection to the remedial steps taken by the
district judge.
Small’s trial commenced as scheduled on October 17. The government presented
testimony from Rowe, Caswell, Dougherty, law enforcement officers involved in the
manhunt at the NSA, a forensic expert in cellular data analysis, and others. Much of this
evidence sought to link Small to Rowe’s carjacking. A friend of Small’s, Jamia Butler,
testified that Small had borrowed a white minivan from her on the day of the carjacking
and armed robbery. She stated that Small told her he would be using the van to give his
associate, Ronald Hall, a ride, and that she saw Small and Hall drive off together that day.
8
Caswell and Dougherty testified about the white minivan present during their robbery. The
government later presented evidence that Hall resembled the gunman who accosted Rowe.
An expert in cellular analysis testified that Small and Hall’s cell phones were used
in the Federal Hill neighborhood around the time of the carjacking and robbery. Call data
showed that the two were in constant communication that night, exchanging multiple calls
and text messages. Shortly before masked assailants approached Rowe, Small sent Hall a
text message that read: “Get da dude cpming down da st.i parked on . . . .” J.A. 599. The
government also introduced incriminating excerpts from nine calls that Small made from
state custody in 2016. J.A. 458; see, e.g., J.A. 579-80 (“They said it was three people. All
of them had on masks. . . . It was four individuals babe. . . . I was the driver.”). On October
25, 2017, after the trial concluded, the jury found Small guilty of all three counts. He was
sentenced to 324 months in prison.
D.
During the course of proceedings before the district court, Small made three motions
relevant to the instant appeal. First, at the close of evidence, Small made a motion for a
judgment of acquittal on the carjacking and conspiracy charges on the grounds that the
government had failed to offer evidence sufficient to establish the mens rea element of
carjacking under 18 U.S.C. § 2119. Specifically, he asserted that no reasonable juror could
conclude that he or his coconspirators possessed § 2119’s requisite “intent to cause death
or serious bodily harm” during Rowe’s carjacking. The district court denied Small’s
motion, finding that the government’s evidence with respect to intent was sufficient to send
the question to the jury.
9
Second, prior to trial, Small filed a motion to suppress evidence derived from or
related to his cell phone. He asserted that the four warrantless searches of his phone violated
the Fourth Amendment, rendering all evidence stemming from those searches—including
his cell phone location data and text messages—inadmissible. 1 The district court denied
Small’s motion, concluding that no warrant was required for the searches because Small
had abandoned his phone.
Third, shortly after trial began, Small moved to excuse and question jurors 5 and 11,
based on concerns that the incident outside the jury room “would influence their verdicts
in such a way that they would no longer be . . . fair and impartial jurors . . . .” J.A. 87-88.
The district court declined to take either step, finding that the defendant’s requested relief
was not warranted based on the sparse information presented.
Small now appeals the district court’s denial of these three motions.
II.
A.
Under 18 U.S.C. § 2119, a person commits the crime of federal carjacking if he or
she, “(1) with intent to cause death or serious bodily harm (2) took a motor vehicle (3) that
had been transported, shipped or received in interstate or foreign commerce (4) from the
person or presence of another (5) by force and violence or intimidation.” United States v.
1
At times, the government implies that its limited uses of Small’s phone prior to
obtaining a warrant did not qualify as searches for Fourth Amendment purposes. See
Appellee’s Br. at 14, 26-28. Because this issue was not fully briefed and ultimately does
not impact our holding, we will simply assume for the purposes of our analysis that four
warrantless searches of Small’s phone occurred. Infra Section III.
10
Foster, 507 F.3d 233, 246-47 (4th Cir. 2007) (quoting United States v. Applewhaite, 195
F.3d 679, 685 (3d Cir. 1999)).
Section 2119’s mens rea component, a specific intent requirement, is satisfied
whether the defendant unconditionally or conditionally “inten[ded] to cause death or
serious bodily harm,” 18 U.S.C. § 2119, during a carjacking. Holloway v. United States,
526 U.S. 1, 8, 12 (1999). That is, the government need not prove that the defendant intended
to cause death or serious harm “if unnecessary to steal the car,” so long as it shows that “at
the moment the defendant demanded or took control over the driver’s automobile the
defendant possessed the intent to seriously harm or kill the driver if necessary to steal the
car . . . .” Id. at 12 (emphasis added).
To establish conditional intent, the government must provide evidence above and
beyond “an empty threat, or intimidating bluff” made by the defendant during the
carjacking. Holloway, 526 U.S. at 11. Section 2119’s “by force and violence or by
intimidation” actus reus requirement remains distinct from its mens rea requirement: an
empty threat would satisfy the former but not the latter. Id. at 11-12. If the defendant were
unwilling to follow through on an intimidating bluff, then he would lack the intent “to
seriously harm or kill the driver if that action had been necessary to complete the taking of
the car.” Id. With these points in mind, we turn to the facts of the case at hand.
B.
Small claims that there is insufficient evidence to sustain his conspiracy and
carjacking convictions, and that the district court erred in denying his motion to this effect.
Specifically, Small contends that the government failed to present sufficient evidence for
11
a reasonable juror to find that he or his coconspirators acted with “intent to cause death or
serious bodily harm” as required by 18 U.S.C. § 2119.
A defendant who challenges the sufficiency of the evidence “faces a heavy burden.”
Foster, 507 F.3d at 245. A jury verdict will be sustained so long as “there is substantial
evidence in the record to support it.” United States v. Wilson, 198 F.3d 467, 470 (4th Cir.
1999). When evaluating the sufficiency of the evidence, “we view the evidence in the light
most favorable to the government,” id., and ask whether “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt,” Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
Small fails to carry his burden. There is substantial evidence in the record from
which a reasonable juror could conclude that Small or his coconspirators intended to
seriously harm or kill Rowe if necessary to steal his vehicle. The facts of this case are
chilling: no ordinary vehicle theft took place here. Rowe was walking alone at night on a
deserted street. He was accosted by three men—wearing masks—one of whom was holding
a gun. The armed assailant demanded everything Rowe had while pointing the gun “in [his]
face.” J.A. 181. The gun would remain trained on Rowe, only a foot from his head,
throughout the entire interaction. Furthermore, the assailants made physical contact with
their victim; when Rowe said he had only keys on him, they “patted [him] down” and “felt
in [his] pockets.” J.A. 182-83. Even after Rowe’s assailants had his car keys, they tried to
make him follow them to another location. All of this evidence allowed the jury to infer
that Small or his coconspirators possessed the intent to seriously harm or kill Rowe if
necessary to steal his car.
12
Although juries evaluating intent are entitled to consider the entirety of the
circumstances surrounding a carjacking, see United States v. Fekete, 535 F.3d 471, 481
(6th Cir. 2008), two facts are of particular note in the case at hand: (1) an assailant pointed
a gun at Rowe; and (2) an assailant made physical contact with Rowe. First and foremost,
an assailant’s wielding a gun provides a strong indication of intent to inflict bodily harm if
met with resistance, particularly when “the perpetrator[] did not merely display a
gun . . . but rather pointed the gun at the [victim] in demanding car keys and other
possessions.” United States v. Franklin, 545 F. App’x 243, 249 (4th Cir. 2013); see also
United States v. Robinson, 855 F.3d 265, 269 (4th Cir. 2017) (finding “plenty of evidence
of . . . intent” when the defendant pointed a gun at the carjacking victim’s head and
threatened her); Foster, 507 F.3d at 247 (finding element of intent satisfied when the
defendant held a gun to the victim’s head, ordered him out of the car, and refused him
reentry).
In addition, an assailant’s physical touching of a victim during a carjacking—
whether by hand or with a weapon—supports a jury’s finding of intent. See Franklin, 545
F. App’x at 249 (finding that a defendant’s “‘grop[ing]’ [of] one of the vehicle’s passengers
[while] searching for items to steal” supported the jury’s finding of intent); Fekete, 535
F.3d at 478 (noting that courts often look to “whether there was physical violence or
touching” to determine whether § 2119’s intent requirement is satisfied). And while the
gunman here did not touch his weapon to Rowe’s head, he very nearly did so by pointing
it from only a foot away. See United States v. Adams, 265 F.3d 420, 425 (6th Cir. 2001)
(adopting a general rule that “physically touching a victim with a weapon, standing
13
alone, . . . indicates an intent on the part of the defendant to act violently” as required by
§ 2119); cf. United States v. Bailey, 819 F.3d 92, 97-98 (4th Cir. 2016) (declining to find
§ 2119’s intent element satisfied when the defendant held an object to the victim’s neck
but there was no evidence that it was a weapon).
Small attempts to undermine the jury’s finding by noting several characteristics of
the carjacking at hand: first, Rowe’s assailants did not verbally threaten him; second, the
government did not present proof that the gun was loaded; and third, Rowe’s assailants did
not harm him when he failed to follow certain instructions. While it is true that these factors
are relevant to intent, none are dispositive. They speak to evidentiary weight, a matter that
belongs with the jury. Jackson, 443 U.S. at 318-19 (“Th[e] [sufficiency of the evidence]
standard gives full play to the responsibility of the trier of fact . . . to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.”); Robinson, 855 F.3d
at 269.
Take the lack of verbal threats. While verbally threatening the victim can certainly
help establish intent, see Robinson, 855 F.3d at 269, there is no bar to finding intent in
cases that lack verbal threats, see Foster, 507 F.3d at 247. Indeed, it is difficult to imagine
a more effective threat than holding a gun to someone’s head. A reasonable juror in the
case at hand could well conclude that Rowe’s assailants were letting the gun do the talking.
Nor does the lack of proof that the gun was loaded decide this case. Fekete, 535
F.3d at 478 (“[T]he issue of whether a carjacker’s firearm was loaded has generally not
been treated by the courts as outcome-dispositive. Rather, the courts have looked at the
totality of the relevant circumstances . . . .”). The carjacking statute does not require the
14
use of a loaded gun; it requires that a defendant have the “intent to cause death or serious
bodily harm.” 18 U.S.C. § 2119; see also Fekete, 535 F.3d at 480. Here, the government
presented testimony from gun owner Caswell and military veteran Dougherty indicating
that their masked assailant’s weapon was real. Rowe believed so as well. And as too many
crime victims know, even an unloaded firearm is capable of causing harm. See Fekete, 535
F.3d at 480 (noting the danger of pistol-whipping). Based on the evidence presented here,
a reasonable juror could conclude that—even if Rowe’s assailants carried an unloaded
gun—“[they] nonetheless had the requisite conditional intent to cause death or serious
bodily harm by other means (e.g., pistol-whipping or brute force),” id.Finally, Small alludes to the fact that Rowe’s assailants did not harm him when he
failed to follow their instructions. But this is not persuasive. Under § 2119, the defendant’s
intent is examined as of “the precise moment he demanded or took control over the car.”
Holloway, 526 U.S. at 8 (emphasis added). Although Rowe refused to give his assailants
his house keys, likely to avoid endangering his fiancée, he turned over his car keys instantly
and without protest. A reasonable juror could conclude that this scenario would have
played out differently, even tragically, if Rowe had also refused to turn over his car keys.
Similarly, while Rowe refused to follow his assailants to an unknown location, this
occurred after he had already handed over his car keys. A reasonable juror could conclude
that Rowe’s assailants felt no need to harm him at that point because they already had
something of value—his car keys.
Small next argues that a finding of intent in the case at hand would place our circuit
in conflict with others. As Small notes, two circuits have held that merely brandishing a
15
gun is insufficient as a matter of law to demonstrate an “intent to cause death or serious
bodily harm,” 18 U.S.C. § 2119. Fekete, 535 F.3d at 480-81 (“[I]n the absence of a physical
touching or direct proof that the firearm was loaded, the government must establish
‘brandishing-plus’ in order to satisfy § 2119’s specific intent element.”); United States v.
Randolph, 93 F.3d 656, 664 (9th Cir. 1996) (“We conclude that the brandishing of a
weapon, without more, does not support an inference of specific intent under § 2119.”),
abrogated by Holloway, 526 U.S. 1 (1999).
As an initial matter, it is unclear that our holding conflicts with those of our sister
circuits. To the extent that “more” than brandishing is required to establish intent, Rowe’s
assailants did not merely “brandish” a gun. They pointed and trained it at his head. They
physically touched Rowe during the carjacking, when they patted him down. As such, the
“brandishing-plus” test from Fekete would not apply: it is used “in the absence of a physical
touching” of the victim. Fekete, 535 F.3d at 478, 480-81. If we have any disagreement with
our sister circuits—and it is not clear we do—it is limited to precisely when the question
of intent switches from one of fact for the jury, see Robinson, 855 F.3d at 269, to one of
law for the courts. Put another way, after a jury has found § 2119’s specific intent
requirement satisfied and returned a verdict of guilty under unexceptional instructions,
when can a court step in and proclaim that no reasonable jury could have reached that very
conclusion? Jurors excel in cases such as this, where they are asked to apply their common
sense to the factual scenario before them. Thus, we have cautioned that “[c]ourts must resist
invading the jury’s province by transforming questions of fact into matters of law.”
Robinson, 855 F.3d at 269. We decline to invade the jury’s province here. The carjacking
16
and conspiracy charges against Small were properly submitted to the jury, and the jury
returned a verdict of guilty.
Jury verdicts are entitled to respect. The jury here found that Small or his
coconspirators possessed the “intent to cause death or serious bodily harm,” 18 U.S.C.
§ 2119, when in the course of taking his car they demanded at gunpoint that Rowe hand
over everything he had. We decline to overturn the jury’s conclusion on this question of
fact, since “it is clearly the jury’s duty, not ours, to decide it.” Robinson, 855 F.3d at 269.
III.
A.
We next address Small’s Fourth Amendment challenge. The Fourth Amendment
protects “[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const. amend. IV. To safeguard this
right, courts apply an exclusionary rule, which dictates that “evidence obtained in violation
of the Fourth Amendment cannot be used in a criminal proceeding against the victim of
the illegal search and seizure.” United States v. Calandra, 414 U.S. 338, 347-48 (1974).
Although warrantless searches are generally considered “per se unreasonable under the
Fourth Amendment,” this generality is subject “to a few specifically established and well-
delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United
States, 389 U.S. 347, 357 (1967)). One such exception is abandonment. Abel v. United
States, 362 U.S. 217, 241 (1960) (“There can be nothing unlawful in the Government’s
appropriation of . . . abandoned property.”); United States v. Leshuk, 65 F.3d 1105, 1111
(4th Cir. 1995) (“The law is well established that a person who voluntarily abandons
17
property . . . is consequently precluded from seeking to suppress evidence seized from the
property.”).
A finding of abandonment is based “not [on] whether all formal property rights have
been relinquished, but whether the complaining party retains a reasonable expectation of
privacy in the articles alleged to be abandoned.” United States v. Haynie, 637 F.2d 227,
237 (4th Cir. 1980) (quoting United States v. Wilson, 472 F.2d 901, 902 (9th Cir. 1973)).
To determine whether the defendant maintains a reasonable expectation of privacy in an
item, the court performs “an objective analysis” which considers the defendant’s actions
and intentions. United States v. Davis, 657 F. Supp. 2d 630, 647-48 (D. Md. 2009), aff’d,
690 F.3d 226 (4th Cir. 2012). “Intent [to abandon] may be inferred from words spoken,
acts done, and other objective facts.” Id. at 648 (quoting United States v. Hoey, 983 F.2d
890, 892 (8th Cir. 1993)).
B.
Small contends that the district court erred in denying his motion to suppress the
fruits of the warrantless searches of his cell phone. Specifically, Small alleges that there
was insufficient evidence for the court to conclude that the phone was abandoned and that
no warrant was required for the initial searches.
In reviewing a district court’s denial of a motion to suppress, we review legal
determinations de novo and factual findings for clear error. United States v. Lull, 824 F.3d
109, 114 (4th Cir. 2016). The government bears the burden of proving the admissibility of
evidence obtained pursuant to a warrantless search by a preponderance of evidence. See
18
United States v. Matlock, 415 U.S. 164, 178 n.14 (1974); United States v. Helms, 703 F.2d
759, 763-64, 766 (4th Cir. 1983).
In determining whether this standard is met, we may consider both the evidence
before the district court at the suppression hearing and “evidence adduced at trial that
support[ed] the district judge’s ruling.” United States v. Han, 74 F.3d 537, 539 (4th Cir.
1996); see also Carroll v. United States, 267 U.S. 132, 162 (1925). Still, there are temporal
limitations on evidence used in our analysis: we evaluate whether the defendant intended
to abandon an item using only objective information available to officers at the time they
performed the warrantless search. United States v. Nowak, 825 F.3d 946, 948 (8th Cir.
2016) (per curiam); Bond v. United States, 77 F.3d 1009, 1013 (7th Cir. 1996). As the
Supreme Court has noted, the reasonableness of a search is evaluated based on “the facts
known to the police” at the time. United States v. Banks, 540 U.S. 31, 39-40 (2003). A
Fourth Amendment search “is good or bad when it starts.” United States v. Di Re, 332 U.S.
581, 595 (1948).
Abandonment should not be casually inferred. People lose or misplace their cell
phones all the time. But the simple loss of a cell phone does not entail the loss of a
reasonable expectation of privacy. Thus, such ordinary mishaps do not constitute
“abandonments.” Rather, as the district court noted, “[t]here has to be some voluntary
aspect to the circumstances that lead to the phone being what could be called abandoned.”
J.A. 41. Here there clearly was.
The evidence before the district court depicts a fleeing suspect tossing aside
personal items while attempting to evade capture. Small fled on foot after crashing through
19
the NSA gates, leaving his vehicle and its contents behind. Search personnel would
continue to find Small’s personal items strewn about during the manhunt. At 1:45 am,
officers located a bloody shirt and hat in the vicinity of the crashed car. The obvious
conclusion is that these items—or, at the very least, the shirt—were purposefully removed
and tossed aside. Several hours later, around 5:00 am, officers located a cell phone only
fifty yards from the shirt and hat. The phone was found in a grassy area, not on a sidewalk
or “a place where [someone] normally might be.” J.A. 43.
Based on these circumstances, the district court’s inference that Small abandoned
the phone seems sensible. Because a cell phone’s GPS tracking can “lead you to a
defendant,” J.A. 39, it is credible that a fleeing suspect might intentionally discard his
phone. And while phones occasionally slip out of pockets, shirts do not accidentally fall
off their wearers—at the exact same moments as hats—and cars do not ditch themselves
after a crash. The fleeing suspect’s relinquishment of the car, the hat, and the shirt near
where the cell phone was found support the district court’s finding of abandonment.
The district court relied heavily on these circumstances to reach its conclusion that
Small no longer had a “reasonable expectation of privacy in th[e] phone.” J.A. 42-43. Small
“is fleeing from the police, he crashes through a gate in a place where he is not supposed
to be. He’s clearly left the car. Items are being left behind, the bloody shirt and hat being
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one of them.” J.A. 42. Further, the court noted that there was no evidence Small attempted
to retrieve his phone at any point, even though it wasn’t password protected. 2
Evidence gleaned from trial testimony points in the same direction. This testimony
demonstrates why search personnel could reasonably conclude at the time of the search
that the phone belonged to the suspect-at-large. While the government briefly noted at the
suppression hearing that the NSA went on “lockdown” when Small crashed through the
fence, J.A. 27, trial testimony from several search personnel gave a more complete picture
of the scope of the manhunt. The testimony suggests that few people besides the suspect
and search personnel were out-and-about in the hours before the phone was found.
As trial testimony established, the cell phone was found in a large crime scene, not
in a crowded public area. An Anne Arundel police officer radioed during the car chase for
“aviation assets” and “K-9 assets.” J.A. 74. After Small entered Fort Meade but before he
crashed through the NSA fence, an Army sergeant locked the Fort Meade gates and only
reopened them to allow entry by search personnel. After the crash, an NSA police captain
established a perimeter within the NSA and led a thorough, methodical search for the
suspect. Search personnel could well believe that this phone—located during the early
2
Citing Riley v. California, 134 S. Ct. 2473 (2014), Small contends that even if he
abandoned his physical phone, he did not abandon its digital contents. Appellant’s Opening
Br. at 44-45. We do not find this argument persuasive. While Riley held that “the search
incident to arrest exception does not apply to [digital information stored on] cell phones,”
it emphasized that “other case-specific exceptions may still justify a warrantless search of
a particular phone.” 134 S. Ct. at 2493-94. For the reasons noted, this is such a case.
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morning hours in a grassy area in a facility on lockdown—belonged to the fleeing suspect
who deliberately abandoned it during flight.
When Small discarded the phone, he ran the risk that complete and total strangers
would come upon it. In tossing his phone, he relinquished his reasonable expectation of
privacy in it as well. The district court’s decision to deny suppression shall be affirmed.
IV.
A.
The Sixth Amendment guarantees a criminal defendant the right to be tried before
an impartial jury. U.S. Const. amend. VI. In order to safeguard this right, the Supreme
Court has held that “[i]n a criminal case, any private communication, contact, or tampering,
directly or indirectly, with a juror during a trial about the matter pending before the jury
is . . . deemed presumptively prejudicial.” Remmer v. United States, 347 U.S. 227, 229
(1954). If the Remmer presumption is met, the defendant is entitled to an evidentiary
hearing in which the government bears the burden of showing “that such contact . . . was
harmless to the defendant.” Id. at 229-30; Haley v. Blue Ridge Transfer Co., 802 F.2d 1532,
1535 (4th Cir. 1986).
Because it is difficult to fully shield juries from the outside world, see Smith v.
Phillips, 455 U.S. 209, 217 (1982), we tolerate certain instances of extrajudicial contact
that “amount to nothing more than innocuous interventions that simply could not justify a
presumption of prejudicial effect,” Haley, 802 F.2d at 1537 n.9; see also Stockton v.
Virginia, 852 F.2d 740, 747 (4th Cir. 1988). Thus, in order to trigger Remmer’s
presumption of prejudice, “the defendant must first establish both that an unauthorized
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contact was made and that it was of such a character as to reasonably draw into question
the integrity of the verdict.” Stockton, 852 F.2d at 743.
To determine whether a contact was innocuous, we “turn to the [five] factors the
Supreme Court deemed important” in Remmer: “(1) any private communication; (2) any
private contact; (3) any tampering; (4) directly or indirectly with a juror during trial; (5)
about the matter before the jury.” United States v. Cheek, 94 F.3d 136, 141 (4th Cir. 1996).
B.
The day Small’s trial began, jurors 5 and 11 approached the Courtroom Deputy with
concerns that individuals outside the jury room had been “watching” them when they left
the courthouse the previous evening. J.A. 49. The jurors did not indicate much else. Small
contends that his Sixth Amendment right to an impartial jury was violated by the district
court’s failure to excuse and question jurors 5 and 11. For this reason, he requests that his
convictions be vacated and his case remanded for a new trial.
We review the district court’s decision not to question or excuse jurors after
allegations of improper contact under “a ‘somewhat narrowed,’ modified abuse of
discretion standard” that allows the appellate court “more latitude to review the trial court’s
conclusion” on the potential for prejudice. Cheek, 94 F.3d at 140 (quoting Haley, 802 F.2d
at 1537 n.11-12); see also United States v. Basham, 561 F.3d 302, 319 (4th Cir. 2009).
Under this standard, we see nothing problematic about the district court’s denial of
Small’s motion to voir dire and excuse jurors 5 and 11. To invoke the Remmer presumption
and the right to an evidentiary hearing, Small bore the initial burden of “introducing
competent evidence that the extrajudicial communications or contacts were ‘more than
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innocuous interventions.’” Cheek, 94 F.3d at 141 (quoting Haley, 802 F.2d at 1537 n.9).
He has failed to do so.
As an initial matter, it is hardly clear that a vague report of “watching,” without
more, constitutes evidence of “extrajudicial communications or contacts,” Cheek, 94 F.3d
at 141; see also United States v. Baptiste, 596 F.3d 214, 220-21 (4th Cir. 2010) (declining
to reach the question of whether stares from a crowd constituted unauthorized contact). We
are unaware of any case where a defendant attempted to invoke the Remmer presumption
based on “watching” alone. “Watching” can hardly be described as “communication” or
“contact,” both of which imply an active exchange of information of some sort.
Unsurprisingly, most precedent discussing extrajudicial contact involves spoken words.
See, e.g., Basham, 561 F.3d at 316, 320 (juror called local news outlets about the trial
before the jury reached a verdict); Stockton, 852 F.2d at 742-43, 746 (local business owner
told the jurors that “they ought to fry the son of a bitch” in a death penalty case). Watching
may be done passively and, unless context indicates otherwise, conveys little information.
Of course, “watching” may take on an extreme and sinister character, but here there
is no evidence that it was anything “more than [an] innocuous intervention[],” Cheek, 94
F.3d at 141. The episode occurred in a common area of a busy courthouse. There was no
reason for the jurors to associate the unknown individuals with Small. Indeed, there was
no indication that the incident was in any way related to Small’s case, “the matter before
the jury,” Cheek, 94 F.3d at 141.
“The trial court must be afforded wide discretion in handling matters relating
to . . . the integrity of the jury.” United States v. Johnson, 657 F.2d 604, 606 (4th Cir. 1981).
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Here the district judge took reasonable steps based on the jurors’ reports. He did not dismiss
or trivialize their concerns. Instead, he increased security around the jury room. Further, he
ensured that jurors 5 and 11 were aware of where to find security personnel, encouraged
them to report any further concerns, and provided clear instructions on how to do so.
The district judge had good reason to be wary of a more searching inquiry. As he
later noted:
Stopping a trial to separately voir dire particular jurors about potential
improper influence has its own potentially deleterious impact. Just that
questioning process could plant in jurors’ minds the notion that perhaps
something untoward is afoot. . . . In this case, the totality of the information
presented to the [c]ourt did not warrant th[is] sort of inquiry . . . .
J.A. 765. We agree. The judge took a measured, thoughtful approach to the jurors’
concerns. These modest steps were proportionate to what the situation required. We find
that the district court did not abuse its discretion by declining to question and excuse jurors
5 and 11.
V.
For the foregoing reasons, we reject Small’s challenges to the proceedings below
and affirm his convictions.
AFFIRMED
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