United States v. Rashid Turner

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-13704
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RASHID TURNER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cr-00080-WFJ-JSS-2
____________________
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2 Opinion of the Court 19-13704
Before LAGOA, BRASHER, and TJOFLAT, Circuit Judges.
PER CURIAM:
Rashid Turner was convicted of bank robbery, Hobbs Act
robbery, and the use of firearms in relation to those robberies.
Among other things, Turner appeals the denial of his motion to
suppress evidence obtained from a warrantless search of his cell-
phone. We conclude that this evidence was correctly admitted
based on the good-faith exception to the exclusionary rule. Because
Turner’s other arguments also fail, we affirm the conviction and
sentence.
I. BACKGROUND
In July of 2017, Rashid Turner met Petrie Addison in Fort
Myers, Florida, where they commiserated over their financial prob-
lems and set off on a months-long robbery spree. On November
18, 2017, they drove to a Wells Fargo bank in a Hyundai rented by
a third party. While waiting in the Hyundai for the bank to open,
Turner answered a call on his LG cellphone. Turner left his phone
in the car while he and Addison robbed the bank.
After robbing the bank, Addison and Turner tried to flee in
the rented Hyundai. But Addison had left the car keys inside the
bank. When Addison went back inside to retrieve the keys, Turner
fled in another vehicle, leaving his LG Phone in the rented Hyun-
dai.
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Turner got away, but the police pursued Addison. After a
chase, Addison crashed the Hyundai and was apprehended. Addi-
son confessed shortly after he was arrested. The next day, Turner
replaced his phone using the same phone number as the LG phone.
The police took possession of the Hyundai, with the LG
phone still inside. Upon executing a warrant to search the car, the
police seized the locked, password-protected LG phone that was
still inside. The phone was put into evidence but was not searched.
Several days after the robbery, Detective Thomas Breedlove
prepared an affidavit for a warrant to search the LG phone. His su-
pervisor approved the warrant application, but Detective Breed-
love put it back in the case file without presenting it to a judge.
Nonetheless, apparently assuming that a search warrant had
been issued, the police extracted data from the phone using a spe-
cial machine. A few days later, Detective Breedlove realized that
he had never obtained a warrant to search the phone. He then
brought the affidavit to a state court judge, explaining what had
happened. Satisfied with Detective Breedlove’s representations,
the judge issued the warrant. No one ever claimed ownership of
the phone or asked for its return.
A federal grand jury indicted Turner with conspiracy to
commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a)
(Count One); four counts of Hobbs Act robbery, in violation of Sec-
tion 1951(a) and 18 U.S.C. § 2 (Counts Two, Four, Six, and Nine);
two counts of bank robbery, in violation of 18 U.S.C. §§ 2113(a) and
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2 (Counts Seven and Ten); and four counts of using, carrying, and
brandishing a firearm during and in relation to the robberies, in vi-
olation of 18 U.S.C. §§ 924(c) and 2 (Counts Three, Five, Eight, and
Eleven).
Turner moved to dismiss some of the robbery counts under
the Double Jeopardy Clause, contending that two of the Hobbs Act
robbery charges addressed the same conduct as the two bank rob-
bery charges. After conducting a hearing, the district court denied
the motion.
Turner also moved to suppress cell-site location information
that law enforcement had obtained via court order, and evidence
obtained from searching the phone. The district court denied both
motions. As to the first motion, the district court held that, at the
time of the search, our caselaw established that no warrant was re-
quired to obtain cell-site information. As to the second motion, the
district court held that the officers had acted in good faith and that
Turner had abandoned the phone in the rental car.
At trial, Turner objected to the district court’s admission of
testimony from Special Agent Loretta Bush regarding her use of a
software called PenLink to map out Turner’s locations using cell-
tower data. He argued that Agent Bush lacked credibility because
she had no formal training in the software. The district court re-
served ruling at that time but noted that the objection had been
preserved.
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Following a five-day trial, a jury found Turner guilty of all
charges except one of the robbery charges and its accompanying
firearm charge (Counts Two and Three). Turner later moved to
strike the jury’s verdicts on the Section 924(c) counts on the ground
that they were premised on crimes that qualified as crimes of vio-
lence only under Section 924(c)’s unconstitutionally vague residual
clause. The district court denied the motion.
Turner was sentenced to concurrent terms of 240 months’
imprisonment on the conspiracy, Hobbs Act robbery, and bank
robbery convictions, and three consecutive seven-year terms of im-
prisonment on the Section 924(c) convictions, for a total of 492
months’ imprisonment. Turner timely appealed.
II. STANDARDS OF REVIEW
“We review a district court’s denial of a motion to suppress
evidence as a mixed question of law and fact, with rulings of law
reviewed de novo and findings of fact reviewed for clear error, in
the light most favorable to the prevailing party in district court.”
United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007).
We review de novo whether the good-faith exception to the
exclusionary rule applies to a search, but “‘the underlying facts
upon which that determination is based are binding on appeal un-
less clearly erroneous.’” United States v. Martin, 297 F.3d 1308,
1312 (11th Cir. 2002) (quoting United States v. Norton, 867 F.2d
1354, 1360 (11th Cir. 1989)).
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We review the district court’s evidentiary rulings for abuse
of discretion. See United States v. Barsoum, 763 F.3d 1321, 1338
(11th Cir. 2014).
For jury instructions generally, the standard of review “is
simultaneously de novo and deferential.” Bhogaita v. Altamonte
Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1285 (11th Cir. 2014).
We generally review claims of double jeopardy de novo.
United States v. Bobb, 577 F.3d 1366, 1371 (11th Cir. 2009).
III. DISCUSSION
Turner makes five arguments on appeal. He argues that the
district court erred in denying 1) his motion to suppress the con-
tents of his cellphone; 2) his motion to suppress his cell-site records;
3) his motion to strike the jury’s verdicts on the Section 924(c)
counts; 4) his motion to dismiss based on double jeopardy; and 5)
his motion to strike Agent Bush’s testimony at trial. We address
each of these arguments in turn.
A. Motion to Suppress Phone Contents
We turn first to the district court’s decision to deny Turner’s
motion to suppress the contents of his cellphone. 1 Turner contends
1 The government argues that Turner waived his challenge to the district
court’s order because he “has not identified the specific evidence that the dis-
trict court supposedly admitted in violation of his Fourth Amendment rights.”
Although he does not include record cites in his brief, Turner makes clear that
he is challenging the search of the contents of his phone, including, the “text
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that the government lacked good faith in searching the phone be-
fore securing a warrant. He also argues that he did not abandon his
phone because it was password protected. Because we disagree
with Turner’s first argument, we need not address his second.
The Fourth Amendment’s warrant requirement contains a
good-faith exception, and evidence should not be suppressed
where it was obtained by law enforcement who act on a good-faith
belief that their conduct does not violate the Fourth Amendment.
United States v. Leon, 468 U.S. 897, 922 (1984).
Turner argues that the good-faith exception does not apply
here because the warrant affidavit “inaccurate[ly]” stated that “the
LG cellphone was not claimed by Addison.” Because the police did
not question Addison about the phone, Turner contends that the
fact that the phone was not claimed “misle[d]” the judge into be-
lieving Addison denied ownership. We disagree. Stating that Addi-
son did not claim ownership of the phone does not imply that he
was specifically asked about the phone or that he denied owner-
ship. Nor would Addison’s denial have changed the probable cause
required to issue the warrant. Regardless of whether Addison was
questioned about the phone, the phone was found in the getaway
car of a bank robbery.
evidence, cell phone calls, cell site pickup, Google Searches, [and] photo-
graphs.” Accordingly, we conclude that Turner has properly preserved and
raised this issue. See Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1286 n.4 (11th
Cir. 2003).
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Turner also argues the good-faith exception is inapplicable
here because Detective Breedlove “recklessly” asked Sergeant
Power to search the phone without a valid warrant. But the district
court found that Detective Breedlove “made a mistake and at-
tempted to rectify it.” Thus, the court concluded that police acted
in “good faith” and “the Fourth Amendment exclusionary rule [did
not] require[] any further activity to incent these police officers
who know quite well how to conduct themselves.” Reviewing this
finding for clear error and in the light most favorable to the gov-
ernment, we agree. Upon realizing that he had failed to have the
warrant signed by a judge, Detective Breedlove immediately noti-
fied Sergeant Power of the mistake. The same day, he explained
what happened before a state court judge who then signed the war-
rant. Thus, we agree that Detective Breedlove acted in good faith
rather than “some sort of strategic action.” Based on this finding,
we affirm the district court’s denial of Turner’s motion to suppress.
See Leon, 468 U.S. at 922.
B. Motion to Suppress Cell-Site Data
Turner argues that the district court erred in denying his
motion to suppress his cell-site records. Under the Stored Commu-
nications Act, 18 U.S.C. § 2703(d), police can acquire cell-site rec-
ords from cellular providers if they have “reasonable grounds to
believe that the contents of a wire or electronic communication, or
the records or other information sought, are relevant and material
to an ongoing criminal investigation.” In Carpenter v. United
States, the Supreme Court held that “[t]he Government’s
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acquisition of . . . cell-site records was a search within the meaning
of the Fourth Amendment,” and that “the Government must gen-
erally obtain a warrant supported by probable cause before acquir-
ing such records.” 138 S. Ct. 2206, 2220-21 (2018). In United States
v. Joyner, we held that searches of cell-site records obtained under
Section 2703(d) trigger the good faith exception to the warrant re-
quirement if they were conducted before Carpenter was decided.
899 F.3d 1199, 1204–05 (11th Cir. 2018) (citing United States v.
Leon, 468 U.S. 897 (1984)).
Here, the Section 2703(d) order for Turner’s cell-site records
was issued on March 9, 2018, almost three months before Carpen-
ter was decided. Turner argues that the government, while not re-
quired to be omniscient with regards to future rulings of the Su-
preme Court, “should have exercised caution and sought a warrant
instead of taking any risks especially considering the seriousness of
the crimes alleged.” Turner cites no authority, persuasive or other-
wise, for this proposition. And because Joyner squarely forecloses
Turner’s argument, the district court did not err in denying his mo-
tion to suppress the cell-site records.
C. Testimony of Special Agent Bush
Turner argues that the district court abused its discretion by
allowing Special Agent Bush to testify about the cell-site data be-
cause she was not an expert in the PenLink software. But Special
Agent Bush never used the PenLink software to produce the data.
Instead, she took the data to another detective who was
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experienced with PenLink to put it in a “user-friendly” format.
Thus, the fact that Special Agent Bush lacked specialized training
in PenLink would have had no bearing on the admissibility of her
testimony. And Special Agent Bush testified that her use of the
PenLink data consisted of entering location points into Google
Earth. Accordingly, permitting this testimony was not an abuse of
discretion.
D. Motion to Strike Portions of the Verdict
Turner also argues that the district court erred in denying
his motion to strike Counts Five, Eight, and Eleven of the jury’s
verdict. He asserts that the verdict form for those counts contained
the same language as Section 924(c)’s residual clause, which the Su-
preme Court held to be unconstitutionally vague in United States
v. Davis, 139 S. Ct. 2319, 2336 (2019). So, he argues, the jury’s guilty
verdict on those counts was based on an unconstitutional statute.
But Turner concedes that his argument is foreclosed by our deci-
sion in United States v. St. Hubert, 909 F. 3d 335 (11th Cir. 2018),
in which we held that Hobbs Act robbery “independently qualifies
as a crime of violence under § 924(c)(3)(A)’s use-of-force clause.”
Id. at 345. Because he raises the issue only “to preserve it in case
the Supreme Court overrules [St. Hubert],” we decline to address
it further.
Turner’s motion is also procedurally defective since he ex-
plicitly approved of the verdict form. See United States v. Silvestri,
409 F.3d 1311, 1337 (11th Cir. 2005) (holding that, by expressly
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accepting jury instructions, a party invites any error therein). Thus,
he has failed to properly preserve any challenge to it.
E. Double Jeopardy
Turner argues that the Second Superseding Indictment vio-
lated the Double Jeopardy Clause with regards to Counts Six,
Seven, Nine, and Ten. The Indictment twice charged Turner with
the same act of robbing the Wells Fargo on November 18, 2017:
Count Six charged Turner under the Hobbs Act, 18 U.S.C. § 1951,
and Count Seven charged him under the Federal Bank Robbery
Act, 18 U.S.C. § 2113. Likewise, the Indictment charged Turner
twice with the same act of robbing a Seacoast Bank on December
4, 2017: Count Nine charged Turner under the Hobbs Act and
Count Ten charged him under the Bank Robbery Act.
The Fifth Amendment’s Double Jeopardy Clause provides
that no person may be “twice put in jeopardy” “for the same of-
fence.” U.S. Const. amend. V. “‘Where the same conduct violates
two statutory provisions, the first step in the double jeopardy anal-
ysis is to determine whether the legislature . . . intended that each
violation be a separate offense.’” United States v. Smith, 532 F.3d
1125, 1128 (11th Cir. 2008) (quoting Williams v. Singletary, 78 F.3d
1510, 1512 (11th Cir. 1996)). If the legislative intent is unclear, we
apply the same elements test set forth in Blockburger v. United
States, 284 U.S. 299, 304 (1932). Id.The Blockburger test “is one of statutory interpretation in
which we examine the elements of each offense to determine
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whether Congress intended to authorize cumulative punish-
ments.” United States v. Williams, 527 F.3d 1235, 1240 (11th Cir.
2008). Under that test, two offenses are different for double jeop-
ardy purposes “if each ‘requires proof of an additional fact which
the other does not.’” Smith, 532 F.3d at 1128 (quoting Cole v.
United States Dep’t of Agric., 133 F.3d 803, 805 (11th Cir. 1998)).
Comparing criminal statutes for purposes of Double Jeopardy “re-
quires a strictly textual comparison.” United States v. Bobb, 577
F.3d 1366, 1373 (11th Cir. 2009) (citing Carter v. United States, 530
U.S. 255, 260-61 (2000)). The key question is whether “a scenario
exist[s] where the hypothetical defendant might violate one section
without violating the other.” United States v. Hassoun, 476 F.3d
1181, 1189 (11th Cir. 2007).
Turner’s double jeopardy argument rests primarily on legis-
lative intent. He contends that the legislative history of the Bank
Robbery Act “clearly imported” that bank robberies should be
prosecuted solely under the Bank Robbery Act to the exclusion of
the Hobbs Act. But we are limited to a “strictly textual compari-
son” when comparing criminal statutes for double jeopardy pur-
poses. Bobb, 577 F.3d at 1373. Thus, Turner’s argument relying on
legislative history is unpersuasive.
Looking at the text of the statutes, we conclude that they
satisfy Blockburger because each requires proof of a fact that the
other does not. In pertinent part, the Bank Robbery Act criminal-
izes the forceful taking of property from “any bank, credit union,
or any savings and loan association.” 18 U.S.C. § 2113(a). In
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contrast, the Hobbs Act provides criminal penalties for anyone
who “obstructs, delays, or affects commerce . . . by robbery.” 18
U.S.C. 1951(a). Thus, under the Hobbs Act, a robbery or attempted
robbery must affect commerce, an element not required for the
Bank Robbery Act. On the other hand, the Bank Robbery Act, but
not the Hobbs Act, requires that the crime be perpetrated against
a “bank, credit union, or any savings and loan association.” 18
U.S.C. 2113.
Finally, to the extent Turner argues that the current prose-
cution is unconstitutional because one act simultaneously violates
two different statutes, that argument is meritless. “[D]ouble jeop-
ardy is not implicated simply because a factual situation might exist
where a defendant could commit one act that satisfies the elements
of two distinct offenses.” Hassoun, 476 F.3d at 1188-89. Thus, the
district court was correct in denying Turner’s motion to dismiss on
double jeopardy grounds.
IV. CONCLUSION
For the foregoing reasons, we conclude that all of Turner’s
arguments on appeal are without merit. Accordingly, we AFFIRM.