This post summarizes criminal law and related cases released by the Fourth Circuit Court of Appeals during September of 2026. Cases of potential interest to state practitioners are summarized monthly. Previous summaries of Fourth Circuit are available here.
Decision to strike the entirety of a defendant’s closing argument was an abuse of discretion as to that defendant only and warranted a new trial; limitations on cross-examination of a main witness for the government about unsubstantiated abuse allegations did not violate the Confrontation Clause; motions to dismiss for alleged due process violations were properly denied
U.S. v. Arias, ___ F.4th ___; 2026 WL 2603965 (Sept. 3, 2026). The defendant, Christian Arevalo, and two codefendants were tried in the Eastern District of Virginia for violent crimes in aid of racketeering, including murder and other offenses. This was part of a larger prosecutorial effort against alleged MS-13 members in the area.
During one of the codefendant’s closing argument, defense counsel attempted to explain why the defendant did not testify and suggested that the other codefendants were responsible for one of the murders. Defense counsel also suggested that she personally believed some of the witnesses for the government. Arevalo’s counsel objected to this argument and requested a mistrial and severance of his trial. The district court acknowledged that the closing argument, “went way beyond the bounds of appropriate conduct,” but ultimately denied both requests. Instead, the district court fashioned a curative instruction to the jury, directing it to ignore the entirety of the offending argument. The district court refused to narrow the instruction to only the offending comments. Once all three defendants were convicted, the two defendants who had not made the improper closing argument moved for a new trial, arguing that they were prejudiced by the improper vouching and references to facts not in evidence that arose during summation. The district court denied that motion as well. All three defendants appealed.
Assuming without deciding that the closing argument was improper, Arevalo and the other codefendant were not prejudiced considering the district court’s instruction for the jury to disregard the argument. The district court therefore did not err by denying the requests for mistrial and severance. As to the defendant whose counsel made the objectionable final argument, the district court erred by striking the entire argument instead of only the objectionable parts of it. Much of the argument was appropriate, and the order to strike the entire argument effectively denied this defendant the opportunity to make any final argument. This implicated the defendant’s Sixth Amendment right to counsel and constituted an abuse of discretion. As a result, the court vacated that defendant’s conviction and remanded the case for further proceedings.
A cooperating codefendant who had already pled guilty in connection to some of the charges was a major witness for the government at trial. The witness’s girlfriend was also charged in connection with the investigation and pled guilty. During her sentencing hearing, she submitted an affidavit describing how her boyfriend (the key witness) had physically and sexually abused her during the relationship. Before trial, the government filed a motion to prevent the defense from using the girlfriend’s allegations during cross-examination of the witness. Finding that the abuse allegations did not go to the credibility of the witness, the district court granted the government’s request. Arevalo and another defendant complained on appeal that this violated their Sixth Amendment rights to confront the witness. The Fourth Circuit disagreed. The witness had not been promised immunity from prosecution for the abuse allegations and no evidence suggested that the witness expected to gain favor with the government regarding charges that might stem from those allegations. The witness was also thoroughly questioned on multiple violent acts and crimes that he had committed, the allegations had only marginal relevance to the credibility of the witness, and the district court was properly concerned about conducting a “trial within a trial.” Given these circumstances, the district court’s ruling did not impinge the defendants’ Confrontation Clause rights.
Finally, two of the defendants moved to dismiss the indictments for alleged due process violations based on three grounds: 1) the pretrial deportation by the government of a potential defense witness; 2) the government’s failure to preserve jail calls between a cooperating codefendant and his mother; and 3) the government’s belated disclosure of information concerning that same cooperating codefendant potentially confessing to an informant. The district court rejected these arguments and the Fourth Circuit affirmed. The testimony that the deported witness could have provided was likely not material and was cumulative of other impeachment evidence. As to the jail calls, the defendants could not show that the calls contained material evidence or that the government acted in bad faith in destroying them ahead of trial. As to the late disclosure of the witness confessing to an informant, the district court barred the witness from testifying at trial. To the extent there was any constitutional violation, the court found that this was an appropriate remedy.
Other challenges were likewise rejected, and the judgment of the district court was affirmed in part.
Any improprieties in the government’s closing argument were harmless and did not impact the verdict; district court’s failure to give requested jury instruction on spoliation of evidence was not an abuse of discretion where there was no indication that the government knew the destroyed evidence was relevant and did not act willfully to destroy it
U.S. v. Martinez-Chavez, ___ F.4th ___; 2026 WL 2651072 (Sept. 9, 2026). The defendant was tried in the Western District of Virginia for possession of firearm by a felon and possession of an unregistered short-barreled rifle. Prior to trial, defense counsel made a routine request for Brady material and other discovery in May of 2024. In October of 2024, defense counsel requested the records of the dispatch calls pertaining to the defendant’s stop and arrest. Under the relevant policy of the sheriff’s department, dispatch calls not categorized as evidence are automatically deleted after six months. Here, the dispatch calls were automatically deleted on July 1, 2024. The defendant requested that the jury receive a spoliation instruction about the dispatch calls. The district court denied that request, finding that the call records were not exculpatory and that the defendant had access to other, similar evidence (much, but not all, the encounter between the defendant and law enforcement was captured on officer body camera).
During the government’s closing argument, the prosecutor referred to a defense witness as “the liar” and referred to law enforcement as “professionals” who were “protecting the community” from “armed felons.” Defense counsel objected to these remarks as improper argument and vouching. In response, the district court instructed the jury that law enforcement testimony should be weighed the same as that of any other witness and reminded the jury that counsel’s remarks during summation are not evidence. The defendant was convicted of both charges.
On appeal, the defendant renewed these arguments. As to the prosecution’s suggestion that the jury should convict because law enforcement professionals had an interest in taking armed felons off the street, this comment was improper. Nonetheless, the remark was harmless under the facts of the case. It was a single, isolated comment during an otherwise appropriate argument reviewing the evidence of the case. The district court’s curative instruction on law enforcement testimony minimized any risk to the defendant that the jury would base its decision on the prosecution’s argument instead of the evidence. The evidence of the defendant’s guilt was also overwhelming. “The challenged statements did not tip this verdict; the evidence did.” Martinez-Chavez Slip op. at 8.
As to the prosecution’s categorization of the defense witness as a “liar,” the defendant failed to object to this remark. While the remark was plainly improper, it did not rise to the level of plain error. The witness had been thoroughly impeached at trial, including with direct contradictions between his testimony on direct examination and his testimony on cross-examination. “A one-word label added nothing beyond what the record reflected.” Id. at 10. This remark also did not impact the verdict.
Finally, the district court did not err by failing to give the requested jury instruction on spoliation. The defendant acknowledged that the government had not acted in bad faith and did not argue a due process violation based on the destruction of the dispatch calls. Without a due process violation, the defendant is only entitled to a spoliation instruction where the government knew the evidence was relevant to a trial issue and acted willfully to lose or destroy the evidence. U.S. v. Johnson, 996 F.3d 200, 206 (4th Cir. 2021). Here, the government had no reason to believe that the dispatch calls were relevant evidence, and they were deleted pursuant to a “neutral” records-retention policy. “[The defendant] provides no evidence that an officer selected them for destruction, considered a duty to preserve them, or deliberately allowed them to disappear.” Id. at 14.
The Fourth Circuit therefore unanimously affirmed the district court’s judgment in all respects.
Warrantless use of a cell-site simulator was a Fourth Amendment search, but the right to be free from such searches was not clearly established at the time and the officers were entitled to qualified immunity
Andrews v. Baltimore City Police Department, ___ F.4th ___; 2026 WL 2872021 (Sept. 24, 2026). Baltimore police suspected that the plaintiff was responsible for a recent shooting and ultimately charged him with attempted murder. To locate him and serve the arrest warrant, police obtained a pen register order for the plaintiff’s phone number. Under Maryland and federal law, a pen register order directs a phone company to provide law enforcement with the numbers of all incoming and outgoing calls from the target phone. Such an order may be authorized whenever information relevant to a criminal investigation is likely to be found from the pen register data—probable cause is not required. The U.S. Supreme Court has held that a pen register order is not a Fourth Amendment search. Smith v. Maryland, 442 U.S. 735, 742-46 (1979). The order authorizing the pen register in this case, however, authorized police to obtain 24 months of call history, along with the serial number of the cell phone and various location data information points. The order also permitted police to “employ surreptitious or duplication of facilities, technical devices or equipment to accomplish the installation and use of the Pen Register” to “initiate a signal to determine the location of the subject’s mobile device.” Andrews Slip op. at 9. After receiving the order, the phone company provided police with not only pen register information, but also historical cell site location and GPS data. Using this information, police determined that the target phone was somewhere within a certain city block of Baltimore. Police then utilized a cell-site simulator (known as Hailstorm) to determine the exact location of the phone, which led to the plaintiff’s apprehension.
Cell-site simulators are devices used by law enforcement to mimic a cell phone tower. When in use, all cell phones in the target area connect to the simulator device instead of normal cell towers. Once the target phone has connected to the cell-site simulator, police can determine the location of the phone far more accurately than with cell-site location data only. Cell-site simulators have been used by law enforcement for decades. The devices are supplied to local law enforcement through the FBI, which requires local law enforcement to sign a non-disclosure agreement about the technology. Under the standard agreement, local law enforcement must notify the FBI before disclosing the use of the technology or before providing any information about the technology and must refrain from disclosing the use or details of the technology without the FBI’s permission. Under the agreement, the state authorities agree to dismiss a matter before disclosing any information about cell-site simulators if requested to do so by the FBI.
For approximately a year while the attempted murder charge was pending, the defense sought information about how Baltimore police had located the plaintiff to no avail. Eventually, the prosecution disclosed their use of the Hailstorm device. Defense counsel moved to suppress, arguing that the use of the cell-site simulator constituted a warrantless search. The trial court granted that motion, and that decision was affirmed on appeal. State v. Andrews, 227 Md. App. 350 (2016). The state appellate court found that the use of the Hailstorm device amounted to a search because it permitted police to track a person’s phone in real time through both public and private spaces. The state appellate court also found that the pen register laws did not authorize the kind of real-time tracking that occurred here and that the pen register order did not amount to a search warrant. Finally, the court also determined that the good faith exception did not apply. In response to this ruling, the prosecution dismissed the attempted murder charge.
The plaintiff then sued the Baltimore police department and several police officers and officials, arguing that the use of the cell-site simulator violated his Fourth and Fourteenth Amendment rights and seeking damages for the two years he was in custody on the attempted murder. The district court initially ruled that the use of the cell-site simulator was permitted by the pen register order and granted the police-defendants’ motion for summary judgment. The plaintiff appealed and a panel of the Fourth Circuit reversed, directing the parties to engage in limited discovery. After discovery was complete, the defendants again moved for summary judgment and the district court again granted that motion. It found that, even if the use of Hailstorm amounted to an illegal search, the police officer defendants were entitled to qualified immunity. The plaintiff appealed.
The U.S. Supreme Court has repeatedly recognized that cell phone users have a reasonable expectation of privacy both in the data contained within a phone and its historical location data. See Chatrie v. U.S., 609 U.S. ___, 146 S. Ct. 2193, 2207 (2026); Carpenter v. U.S., 585 U.S. 296, 311 (2018); Riley v. California, 573 U.S. 373, 394-97 (2014). While no circuit court of appeals has yet considered the question, the Fourth Circuit found that the use of a cell-site simulator by law enforcement to obtain real-time location data amounted to a Fourth Amendment search. Although the real-time location data obtained by police here was merely a “snapshot” of the plaintiff’s movements rather than the more comprehensive digital surveillance at issue in Chatrie and Carpenter, the use of cell-site simulators raise similar privacy considerations. For one, the location data obtained from the Hailstorm device provides police with more accurate information than the use of historical cell-site location data. For another, the cell-site simulator here was used to track a person inside of a private residence. “While a cell-site simulator may only provide limited information, it is likely to ‘reveal a critical fact about the interior of the premises that the Government is extremely interested in knowing and that it could not have otherwise obtained without a warrant.’” Andrews Slip op. at 21 (internal citation omitted). Finally, cell-site simulators seize control of the suspect’s (and other individuals’) phones directly, without law enforcement having to utilize data that the cell phone user voluntarily shared with a phone company. The plaintiff had a reasonable expectation of privacy that his cell phone would not be used by law enforcement this way, and the Fourth Circuit agreed with the Maryland state appellate court that this use of a cell-site simulator was a Fourth Amendment search.
However, the tracking of the plaintiff’s cell phone here happened before law enforcement had the benefit of either Chatrie or Carpenter. The right to be free from warrantless real-time phone tracking via the use of a cell-site simulator was not clearly established at the time of the search, and the officers were entitled to qualified immunity as a result. The district court also correctly found that the plaintiff failed to make a sufficient showing that the police officials or department had a pattern or practice of using cell-site simulators without a warrant or of concealing the use of such technology in judicial proceedings. This precluded imposing liability on the police department or its commissioner.
In closing, the court cautioned that “law enforcement may not rely on a private nondisclosure agreement as an excuse to conceal or obfuscate important information when seeking a search warrant or information that it is required to disclose in court proceedings.” Id. at 28.
The judgment of the district court was therefore affirmed.
Judge Quattlebaum wrote separately, concurring in part and concurring in in judgment. He agreed that the Fourth Amendment right at issue was not clearly established at the time of the search but would have found that the pen register order was effectively a search warrant that satisfied the Fourth Amendment. He also would have refrained from deciding whether the use of the Hailstorm device was a Fourth Amendment search given the decision that the officers were entitled to qualified immunity.
