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United States v. Small

United States Court of Appeals, Fourth Circuit

December 6, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
DONTAE SMALL, Defendant-Appellant.

          Argued: October 31, 2019

          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)


          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.

          Before WILKINSON, KING, and HARRIS, Circuit Judges.

          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.



         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. 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.


         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).

         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.

         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 ...

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