This post summarizes published criminal law and related cases released by the Fourth Circuit Court of Appeals during July 2024. Cases of potential interest to state practitioners are summarized monthly. Previous summaries of Fourth Circuit cases are available here.
No error to summarily deny suppression motion where facts were not in dispute; no constitutional violation for failure to inquire about racial bias during voir dire or for impairment of defendant’s peremptory strikes; defendant was not entitled to enforce terms of plea bargain between his witness and the government; no error to refuse to play the entirety of the defendant’s jail calls for the jury during closing argument
U.S. V. Bowman, 106 F.4th 293 (July 1, 2024). Law enforcement in the Western District of Virginia had information that methamphetamine was being sold from the defendant’s residence. They obtained a search warrant for the home and cars within the curtilage and an arrest warrant for the defendant. Officers found nearly 1,000 grams of meth in the defendant’s car, a lock box containing a cell phone, and a drug ledger with detailed records of transactions. The defendant was not present when officers arrived, but his girlfriend, Carr, was present during some of the search. The defendant was arrested at a nearby hotel the same day. He was carrying more than $7,000 in cash and an additional cell phone. Officers asked the defendant to talk in the hotel room. Upon entering the room, unprompted, he stated, “I’m good at what I do, and I’m connected to the Sinaloa Cartel.” A DEA agent immediately told the defendant to stop talking and read him Miranda warnings, after which the defendant agreed to talk without a lawyer. He went on to admit that he was a drug dealer, and said the meth found at his house was part of a 20-pound shipment that he moved from California to Virginia in a spare tire. He claimed the meth was from the cartel and admitted he had transported between 150-200 pounds of meth during the last year. The defendant was arrested and indicted on drug distribution offenses. While in pretrial custody, he made several phone calls to his girlfriend, directing her to collect money owed from drug transactions and making further admissions of his involvement in drug sales. While his girlfriend eventually pleaded guilty, the defendant went to trial. After cycling through two court-appointed lawyers, he chose to represent himself.
The defendant filed a motion to suppress the first statements made in the hotel room about his connection to the cartel. The district court summarily denied the motion, finding that the motion failed to state a claim, given that it did not allege the statement was made during a custodial interrogation.
During voir dire, the defendant asked the district court to ask prospective jurors the following questions:
- Should law enforcement have to abide by the same hunting and fishing regulations as everyone else?
- Do you believe it’s okay to stereotype people?
- What do you think about black and white marriage?
- Do you believe in common law marriage?
- Do you think it’s right for the government to use scare tactics?
The district court declined to ask any of the questions. Both parties were given a “juror strike list,” which showed the name, general place of residence, and occupation of each potential juror. The defendant saw that government had a different list with additional juror information on it, including their addresses, level of education, employment information, birth year, and similar demographic information (apparently provided to the government by the trial court). The defendant complained, but the district court did not rule on his objection to the government’s juror list. Instead, the judge asked the defendant whether he intended to exercise his peremptory strikes. The defendant refused to do so under the circumstances, and the district court ultimately exercised the defendant’s peremptory strikes on his behalf.
The government presented evidence at trial about standard drug trafficking operations and tied that evidence to the physical evidence in the case, in addition to the defendant’s admissions and the jail calls. The defendant called his girlfriend to testify, but Carr invoked her privilege against self-incrimination. Another defense witness testified that she sold the defendant car tires, apparently in an effort to show that the defendant was a car dealer instead of a drug dealer. During closing argument, the government replayed part of a selection of the jail calls. The defendant objected and asked that the calls be played in full during his closing. The district court initially denied that request, thinking that only portions of the calls had been admitted into evidence. After the defendant’s closing argument, the judge realized that the calls had been admitted in full. Each call was around 16 minutes. Instead of reopening argument or playing the calls for the jury, the trial judge instructed the jury on how to listen to the calls and told them that the defendant wished for them to listen to them in their entirety because he believed the government’s presentation of the calls was misleading. The jury convicted the defendant on all counts, and he was sentenced to 360 months.
On appeal, the defendant (now represented) first argued that the denial of his motion to suppress without a hearing was error. The Fourth Circuit disagreed. The decision to conduct an evidentiary hearing is within the discretion of the trial judge. A hearing is only required when there are material factual disputes to resolve. It is the defendant’s burden to show disputed facts, and the defendant here failed to do so. According to the court:
The motion only asserted that his statement should be suppressed because he made them before he was Mirandized. The Government did not contest that order of events. So the district court didn’t have to hold an evidentiary hearing—it needed only to resolve the legal dispute of whether, taking the facts as the parties agreed them to be, Bowan’s Fifth Amendment rights were violated. Bowman Slip. op. at 9 (emphasis in original).
The defendant argued that his limited access to discovery prevented him from developing evidence in support of the motion. He also noted that he claimed during trial to have requested a lawyer before making the statement. The court was unpersuaded. The defendant still could have alleged facts in dispute in support of his motion, even if discovery access was limited. Further, even if he had requested a lawyer before making the initial remarks to the DEA agent, his Miranda protections still would have been waived by his unsolicited, spontaneous remark.
The defendant next complained of the district court’s handling of jury selection. The defendant argued his proposed questions should have been asked to root out any racial bias in the pool. The defendant is Black, and the entire jury pool was White. While the trial court has a duty to inquire into racial bias upon request when race issues are “inextricably bound up with the conduct of the trial,” such was not the case here. Id. at 13. Other than the fact that the defendant’s girlfriend was White, racial issues were not germane to the case. In the words of the court:
True, Carr is White, and the Government presented evidence that Bowman and Carr were romantically involved. Yet we explicitly held in Barber that the mere existence of an interracial relationship is not enough to show that race is so inextricably bound up in a case that the Constitution requires the district court to ask about racial prejudice. We also reject Bowman’s invitation to assume that, because the jury pool was all White, there was a constitutionally significant risk of racial prejudice. In our system, there is no constitutional presumption of juror bias for or against members of any particular racial or ethnic group. Id. at 14 (cleaned up).
There may be times when the trial court abuses its discretion and reversibly errs by failing to inquire about racial bias even when not constitutionally required, but the defendant here only made a constitutional argument and did not argue the trial court abused its discretion.
As to the district court’s use of the defendant’s peremptory strikes, the defendant again only argued that this violated his constitutional rights. “But the denial or impairment of one’s peremptory strikes only amounts to constitutional error if he can show that a ‘member of his jury was removable for cause.’” Id. at 16 (citing Rivera v. Illinois, 556 U.S. 148, 157 (2009). The defendant admitted that he could not make that showing at oral argument. Regarding the different jury lists, the court observed that it is not unusual for parties to have different amounts of data on potential jurors, especially when one party is representing himself pro se. “Yet the Sixth Amendment does not require district courts to ensure equality of information and ability.” Id. at 19. The court noted that it was improper for the district court to provide different juror information to the government and denounced that practice. “But while the district court could have conducted jury selection better, that doesn’t mean it violated Bowman’s constitutional right to an impartial jury.” Id.
The defendant also alleged error in the district court’s decision to allow Carr to invoke the Fifth Amendment, pointing out that Carr’s plea bargain with the government required her to waive her right to remain silent. While that was true, that plea bargain was between Carr and the government, and the defendant was not entitled to enforce it. In fact, the district court lacked authority to enforce that bargain at the defendant’s request. Carr was awaiting sentencing and could have increased her exposure by testifying at the defendant’s trial. “The district court’s obligation, therefore, was not to enforce the Government’s contractual rights—it was to ensure Carr could exercise her constitutional rights.” Id. at 21.
Finally, there was no error in the district court’s handling of the jail phone calls at closing argument and during jury instructions. The district court asked the defendant to identify any specific portions of the call he wanted to be played for the jury to provide the alleged missing context from the government’s presentation of them, but he was unable to do so. It was within the discretion of the trial court to deny the defendant’s request to play the entire phone calls, and likewise within its discretion to instruct the jury that the defendant wished for the jury to listen to the calls in full.
The judgment of the district court was therefore unanimously affirmed.
Multiple conspiracy convictions violated double jeopardy, but ineffective assistance for failing to make the challenge could not be determined on the cold record; denial of habeas petition vacated and remanded for evidentiary hearing
U.S. v. Slocum, 106 F.4th 308 (July 1, 2024). In this case from the Southern District of West Virginia, the defendant was tried by a jury for one count each of conspiring to distribute heroin and conspiring to distribute oxycodone under the same statute (21 U.S.C. 846), among other charges. He was convicted on all counts and sentenced to 360 months. His direct appeal was unsuccessful, and he sought habeas relief pro se, arguing that trial counsel was ineffective in failing to raise a double jeopardy challenge to his multiple conspiracy convictions. The defendant maintained that there was only a single conspiracy to distribute both drugs. The district court denied the petition without holding a hearing, finding that the defendant did not show a double jeopardy violation. The Fourth Circuit disagreed and reversed.
The Double Jeopardy Clause protects against both a defendant being twice punished for the same offense and against a defendant being twice prosecuted for the same offense. United States v. Ragins, 840 F.2d 1184, 1187 (4th Cir. 1988). While the same elements test of Blockburger v. U.S., 284 U.S. 299 (1932), is the guidepost for determining whether the same conduct constitutes two distinct crimes, it is “a poor fit” for determining whether criminal conduct amounts to multiple violations of the same criminal law (as the defendant argued here). According to the court: “. . . [T]he Blockburger test applies only when the government charges distinct offenses arising under separate statutes.” Slocum Slip op. at 8 (cleaned up). The same elements test is particularly unhelpful when determining whether a defendant engaged in multiple conspiracies. Instead, the Fourth Circuit and others have adopted a totality of the circumstances approach to determining the existence of multiple conspiracies. Under that test, the court should consider the time frame of the alleged conspiratorial acts, the statutory offenses charged, the location of the alleged crimes, the identity of the co-conspirators, and the overt acts or other circumstances in furtherance of the conspiracy that speak to the nature and scope of the conspiracy. Although subsequent circuit and U.S. Supreme Court precedent overruled the “overt act” element of a conspiracy charge under 21 U.S.C. 846, the factors under the totality of circumstances test remain useful. At base, the question is a factual one—were there multiple conspiracies or only one? A conspiracy to distribute drugs may involve the distribution of multiple controlled substances, as the circuit has recognized many times. “It is the factual circumstances that inform whether a defendant entered into one overall agreement to commit multiple crimes, or, instead, multiple agreements to commit separate crimes.” Id. at 10-11. Here, the balance of factors showed only one conspiracy. There was substantial overlap between the relevant time frame, locations, co-conspirators, and the nature and scope of the conspiracies. The defendant therefore successfully showed that his dual conspiracy convictions violated double jeopardy.
That said, the double jeopardy argument was raised in the context of an ineffective assistance of counsel claim. To show ineffective assistance, the petitioner will need to show deficient performance that prejudiced him. If defense counsel made a reasonable strategic decision not to pursue a double jeopardy argument, the petitioner could not show ineffective assistance. Whether such decision was reasonable will turn in large part on whether the precedent existing at the time suggested that the double jeopardy argument would be successful. This was not clear from the record and a remand for an evidentiary hearing was required. Thus, the district court’s decision summarily denying the habeas petition was vacated and the case remanded for further proceedings.
Chief Judge Diaz penned a separate concurrence. He agreed that the dual conspiracy convictions violated double jeopardy protections but would have also held that relevant authority at the time of the trial strongly suggested that the double jeopardy argument would have been successful. He would have limited the scope of the remand to the question of defense counsel’s motivations in failing to bring the double jeopardy challenge only (and not included the question of the strength of the double jeopardy precedent at the time).
Despite never spending the night, the defendant had standing to bring a Fourth Amendment claim as a close and regular social guest of his cousin’s home, but lawful warrant for his arrest allowed police to enter the property, leading to the plain view seizure of a gun
U.S. v. Green, 106 F.4th 368 (July 2, 2024). The defendant was a suspect in an armed home invasion. While investigating, police discovered that the defendant had a prior felony conviction for robbery and obtained a warrant for his arrest for various offenses. Within a few days of the home invasion, an officer observed the defendant driving erratically during a ‘road rage’ event with another driver. While surveilling the defendant, the officer saw him park at a residence and enter the back yard. The officer reported to the warrant squad that the defendant was sitting in a gazebo in the back of the residence with another man. The team of officers charged with executing the arrest warrant was concerned with the possibility of violence from the defendant, given the circumstances of the home invasion, the road rage incident, and the defendant’s criminal history. In addition to a coordinated approach by officers on the ground from the front and back of the residence, law enforcement arranged for a police helicopter to cover the scene from the air. The first officer to contact the defendant (while still on the perimeter of the property) pulled his gun out and informed the defendant he was under arrest. The defendant pulled a gun and held it “in a non-threatening manner.” The same officer alerted the other officers to the presence of the weapon as they converged on the yard. The defendant put the gun down on a shelf of the gazebo and started moving towards the back of the yard. A number of officers effectuated the defendant’s arrest there. The first officer climbed over the fence and started towards the gazebo to secure the gun left by the defendant. The man who was sitting with the defendant remained in the gazebo and officers discovered that he was the property owner and the defendant’s cousin. The gun matched the description of the weapon used in the home invasion and was photographed and seized. The defendant was federally indicted for possession of a firearm by a felon and moved to suppress. The district court denied the motion, finding that the defendant lacked standing to challenge the law enforcement entry onto the property. While the defendant presented evidence from his cousin at suppression showing that the defendant was a regular guest at the home and able to move freely about the residence, he never spent the night in the house. The defendant was convicted at trial and appealed.
Under Minnesota v. Olson, 495 U.S. 91, 96-97 (1990), an overnight guest has a reasonable expectation of privacy in the home of another. On the other hand, under Minnesota v. Carter, 525 U.S. 83, 90 (1998), a person visiting a home for purposes of conducting a commercial transaction lacks a reasonable expectation of privacy. Here, the defendant was a regular social guest of the property owner. While being an overnight guest is an important factor in determining whether someone has a reasonable expectation of privacy in the home of another, “what matters most is the social as opposed to commercial nature of [the] relationship and visit, and not whether the visit includes an overnight stay.” Green Slip op. at 12. The court noted it was not adopting a blanket rule that all social guests will always have standing, but on these facts, the defendant did. He was close with the property owner and had a family relationship with him. The defendant regularly visited the home for long stretches of time, and always did so in a social capacity. He was also able to come and go freely, was allowed to access all parts of the home, and could invite his own friends to the place. “Taken together, these factors indicated precisely the ‘degree of acceptance into the household’ that generates a reasonable expectation of privacy for a social guest.” Id. at 13 (citation omitted). That the defendant brought his firearm onto the property without the knowledge of the homeowner did not alter the analysis. The district court therefore erred in concluding that the defendant lacked Fourth Amendment standing.
Nonetheless, the defendant’s Fourth Amendment challenge failed on the merits. Police had a lawful warrant for arrest, had reason to believe the defendant was on the property, and saw the gun in plain view from there. Officers were in the process of arresting the defendant when the first officer climbed over the fence and went to secure the gun. The arrest was still in progress at that point, which was around 15 seconds after the initial officers entered the yard. The unattended firearm, with an unidentified man sitting next to it on the gazebo, potentially posed a threat to the officers making the arrest and was properly seized pursuant to the plain view exception. Thus, both the entry by police onto the property and the subsequent seizure of the gun were lawful.
The district court’s judgment was therefore affirmed by a unanimous court.
Divided court holds short-term location data shared by Google in response to geofencing warrant did not amount to a search
U.S. v. Chatrie, 107 F.4th 319 (July 9, 2024). A bank was robbed in the Eastern District of Virginia, and police were unable to determine a suspect. Security cameras in the bank showed that the robber possessed a cell phone, and the detective applied for a geofencing warrant to obtain information from Google for a 150-meter area around the bank for the thirty-minute periods of time immediately before and after the robbery. The information obtained as a result ultimately led police to the defendant and he was indicted in federal court for various offenses relating to the armed robbery. He moved to suppress, arguing that the geofencing warrant violated his Fourth Amendment rights. The district court denied the motion. It declined to squarely resolve the Fourth Amendment question, instead finding that the officer was allowed to rely on the geofencing warrant under the good-faith exception. The defendant pled guilty and appealed.
On appeal, the Fourth Circuit undertook a detailed analysis of geofencing warrants. Cell phones operating with Google software at the time of the search warrant in the case had a setting for “Location Services.” This is a setting users can choose to activate, whereby Google tracks the movement of the phone. By default, Location Services are turned off. There are user benefits to the service, such as tracking the phone if it is lost, and personalized recommendations based on location. The service also generates advertisement revenue for Google. Users must perform several steps to activate the service, including enabling location sharing, opting in to Location History on a Google account, enabling Location Reporting, and signing into a Google account. Google provides explanatory text about the nature of the location service before a user can activate it. Once the service has been activated, users still maintain some control of the location data. They may edit or delete all or parts of past data collected, and they may pause the service at any time. When activated, the location of the phone is always monitored by Google via GPS tracking, regardless of whether the phone is in use. Android phones have an additional option to enable “Google Location Accuracy,” which uses additional data inputs like cell towers and wireless network contacts to further refine the location data. This data is stored by Google for study and use in other applications. Starting in 2016, law enforcement began sending geofencing warrants to Google, whereby Location History data for all users within a set geographic area (the “geofence”) over a particular timeframe would be disclosed. Geofence warrants only operate to obtain data from users who have Location History enabled; when the service is not enabled, the location data of the user is not collected by Google. The numbers of these kinds of law enforcement requests grew 1500% from 2017-2018, and another 500% in the following year. Since the time of the search warrant in the defendant’s case, Google has amended its policies on geofencing warrants, which the court did not consider.
Google has developed an internal procedure for handling these warrants. First, the warrant must request anonymized data showing the phones within the geofence at the relevant time. Second, law enforcement reviews that data and may request additional information about any of the users identified at step one. Here, unlike in the first step, Google can provide additional information about a given user, including their location both inside and outside the geofence area and over a longer period of time. Google typically will only provide this more detailed information about user locations for a shorter list of users than the greater pool of users identified at step one. Last, Google can provide information that identifies a user by account information, but only once law enforcement has again narrowed the pool of users from the list provided at step two.
A divided panel of the Fourth Circuit affirmed the denial of the motion to suppress, but on different grounds than the district court. Under the third-party doctrine, information voluntarily shared with others is unprotected by the Fourth Amendment, because a person lacks a reasonable expectation of privacy in such information. U.S. v. Miller, 425 U.S. 435, 443 (1976). While that rule has sometimes been in tension with evolving technology, it remains good law. In Leaders of a Beautiful Struggle v. Baltimore Police Department, 2 F.4th 330 (4th Cir. 2021) (en banc), the court explored the contours of the tension between privacy rights and information voluntarily exposed to others, interpreting the evolution of precedent to draw a line between “short-term public tracking of public movements—akin to what law enforcement could do prior to the digital age—and prolonged tracking that can reveal intimate details through habits and patterns.” Chatrie Slip op. at 17 (cleaned up). Although Beautiful Struggle did not discuss the third-party doctrine, the sweeping and constant aerial surveillance at issue there intruded upon reasonable expectations of privacy because of the breadth of the otherwise-public information gathered. According to the majority, geofencing warrants like the one here—where only two hours of data from a set time and location were gathered—were different. The information sought and obtained by law enforcement in the current case was much more limited in scope, more akin to traditional public surveillance, and revealed much less private information about the defendant. The defendant also consented to share this information with Google, with Google making it clear to users what data is being collected, how it is being collected, and what options users have to edit, delete, or limit it. This case was distinguishable from U.S. v. Carpenter, 585 U.S. 296 (2018), where the cell site location data was shared with the communications company involuntarily by the very nature of the device. Also unlike the cell phone in Carpenter, Location History is not an indispensable feature of modern life. Most users of Google phones—about two thirds—choose not to activate Location History. In the words of the court:
The third-party doctrine therefore squarely governs this case. The government obtained only two hours’ worth of Chatrie’s location information, which could not reveal the privacies of his life. And Chatrie opted into Location History . . . This means that he knowingly and voluntarily chose to allow Google to collect and store his location information. In doing so, he too the risk, in revealing his affairs to Google, that the information would be conveyed by Google to the Government. Chatrie Slip op. at 22.
Because the defendant had no reasonable expectation of privacy in this information, no search was conducted within the meaning of the Fourth Amendment when the government obtained it, and the motion to suppress was properly denied.
Responding to the dissent, the court stressed that Carpenter did not overturn the third-party doctrine, and that the majority was simply applying established Fourth Amendment principles. Both the electronic tracking device line of cases and the third-party doctrine line of cases from the U.S. Supreme Court remain important considerations when deciding cases involving searches of digital data. While the information obtained here could certainly reveal some private information about the defendant (and others), this “brief glimpse” into the defendant’s life was closely circumscribed to a narrow time frame and did not allow law enforcement to determine his longer-term movements and associations. The court criticized the dissent’s suggested multi-factor balancing test approach to resolving the question of whether the defendant had a reasonable expectation of privacy. In the words of the majority:
Instead of faithfully apply[ing] established principles to the case before us, the dissent would have us depart from binding case law and apply a novel, unwieldy multifactor balancing test to reach the dissent’s preferred policy outcome. We decline the invitation. Our Fourth Amendment doctrine compels a clear result here. If one thinks that this result is undesirable on policy grounds, those concerns should be taken to Congress. Id. at 35.
In a nearly 70-page dissent, Judge Wynn disagreed. He would have ruled that the geofencing information here was a search within the meaning of the Fourth Amendment and faulted the majority opinion for permitting geofencing information to be disclosed without a warrant.
Discovery process could lead to material disputed facts on circumstances immediately before shooting; error to grant pre-discovery motion for summary judgment on behalf of trooper
Boyle v. Azzari, 107 F.4th 298 (July 9, 2024). In this case from the District of Maryland, a state trooper heard a dispatch call about a suspicious armed man in a nearby neighborhood. The trooper went to the house next door to the reported location and parked in the driveway. He did not turn on his lights or sirens. He got out of his car and noticed a man at the house next door with what appeared to be a gun (but was in fact a replica). The trooper believed the man pointed the gun at him, pulled his own service weapon, and fired at least eleven shots, one of which hit the man. The trooper moved closer to the man, yelling commands and reloading. He noticed the man also had a knife and that he was bleeding from his right arm. Around sixty seconds after the initial gunshots, the man was on his knees and the trooper was 15-25 feet away from him. The trooper fired four more times, repeatedly hitting the man. The man later died, and his estate filed suit claiming excessive force and other claims. The trooper moved to dismiss and, in the alternative, sought summary judgment before discovery could be conducted. The plaintiff opposed both motions and requested that discovery be conducted before the district court ruled. In support, the plaintiff submitted a statement from a neighbor who had witnessed part of the interaction between the trooper and the decedent. While some of the neighbor’s statement was ambiguous, she described the decedent as having had his hand up while on his knees and as having been in a “dazed” state. The district court granted the trooper’s request for summary judgment, finding that the plaintiff failed to show that the discovery process would lead to contested material facts. According to the district court, it was clear that the decedent was armed with a knife even after the initial gunshots, and, whether he was on his knees or not, the trooper was justified in using deadly force. The plaintiff appealed, and a divided Fourth Circuit reversed.
Summary judgment is typically only appropriate after discovery, and the district court here erred by deciding the summary judgment motion before that process could occur. The plaintiff specifically informed the court that discovery would assist her in responding to the trooper’s motion, pointing to contradictions in the trooper’s account of the incident and noting imp
