Argued: October 31, 2019
from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, Chief District
Brandon Lee Boxler, GIBSON, DUNN & CRUTCHER LLP,
Washington, D.C., for Appellant.
Wilkinson, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
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
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
WILKINSON, KING, and HARRIS, Circuit Judges.
WILKINSON, Circuit Judge.
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.
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
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. 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.
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.
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.
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
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.
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).
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.
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.
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
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.
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 ...