United States v. Dontae Small

                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 18-4327


UNITED STATES OF AMERICA,

            Plaintiff – Appellee,

v.

DONTAE SMALL,

            Defendant – Appellant.



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)


Argued: October 31, 2019                                   Decided: December 6, 2019


Before WILKINSON, KING, and HARRIS, Circuit Judges.


Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge King
and Judge Harris joined.


ARGUED: 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.




                                       2
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 

(1); conspiracy to commit carjacking, in violation of 

; and destruction of government property, in violation of 

.

       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.

                                             I.

                                             A.

       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.

                                             3
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.

                                            B.

                                            4
       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).

                                             5
         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.



                                              6
       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 phone that Small’s phone had called on

the day of the robberies. The government relied on evidence obtained pursuant to these

warrants at Small’s trial.

                                            C.

       After his arrest, Small was charged with the carjacking of Rowe’s Acura, in

violation of 

(1); conspiracy to commit carjacking, in violation of 

; and destruction of government property for crashing through the NSA fence,

in violation of 

.

       The district court empaneled a jury on October 16, 2017, with Small’s trial set to

begin the following day. The next morning, before proceedings began, jurors 5 and 11

approached the Courtroom Deputy to share their concerns that several individuals had been

                                             7
“watching” them as they exited the jury room the previous evening. J.A. 49. The jurors

noted that at least one of these individuals was carrying a cell phone, though they could not

tell if any videos or photographs were taken. The Courtroom Deputy relayed these concerns

to the district judge.

       In response, the district judge took two steps. First, he ensured that court security

officers (“CSOs”) were posted outside both the courtroom and the jury room. Second, he

directed the Courtroom Deputy to inform jurors 5 and 11 of the additional security

measures and that any further concerns should be brought to the attention of the CSOs or

the Courtroom Deputy. The district judge did not disclose the extra security precautions to

the rest of the jurors, nor did he inform them of jurors 5 and 11’s concerns. He believed

that doing so could cause “more harm than good” by drawing attention to concerns that

were “of a pretty vague nature” and possibly based on “misperceptions.” J.A. 51-52.

Immediately before opening statements, the district judge informed the parties of this

situation. Small’s counsel had no immediate objection to the remedial steps taken by the

district judge.

       Small’s trial commenced as scheduled on October 17. The government presented

testimony from Rowe, Caswell, Dougherty, law enforcement officers involved in the

manhunt at the NSA, a forensic expert in cellular data analysis, and others. Much of this

evidence sought to link Small to Rowe’s carjacking. A friend of Small’s, Jamia Butler,

testified that Small had borrowed a white minivan from her on the day of the carjacking

and armed robbery. She stated that Small told her he would be using the van to give his

associate, Ronald Hall, a ride, and that she saw Small and Hall drive off together that day.

                                             8
Caswell and Dougherty testified about the white minivan present during their robbery. The

government later presented evidence that Hall resembled the gunman who accosted Rowe.

       An expert in cellular analysis testified that Small and Hall’s cell phones were used

in the Federal Hill neighborhood around the time of the carjacking and robbery. Call data

showed that the two were in constant communication that night, exchanging multiple calls

and text messages. Shortly before masked assailants approached Rowe, Small sent Hall a

text message that read: “Get da dude cpming down da st.i parked on . . . .” J.A. 599. The

government also introduced incriminating excerpts from nine calls that Small made from

state custody in 2016. J.A. 458; see, e.g., J.A. 579-80 (“They said it was three people. All

of them had on masks. . . . It was four individuals babe. . . . I was the driver.”). On October

25, 2017, after the trial concluded, the jury found Small guilty of all three counts. He was

sentenced to 324 months in prison.

                                              D.

       During the course of proceedings before the district court, Small made three motions

relevant to the instant appeal. First, at the close of evidence, Small made a motion for a

judgment of acquittal on the carjacking and conspiracy charges on the grounds that the

government had failed to offer evidence sufficient to establish the mens rea element of

carjacking under 

. Specifically, he asserted that no reasonable juror could

conclude that he or his coconspirators possessed § 2119’s requisite “intent to cause death

or serious bodily harm” during Rowe’s carjacking. The district court denied Small’s

motion, finding that the government’s evidence with respect to intent was sufficient to send

the question to the jury.

                                              9
       Second, prior to trial, Small filed a motion to suppress evidence derived from or

related to his cell phone. He asserted that the four warrantless searches of his phone violated

the Fourth Amendment, rendering all evidence stemming from those searches—including

his cell phone location data and text messages—inadmissible. 1 The district court denied

Small’s motion, concluding that no warrant was required for the searches because Small

had abandoned his phone.

       Third, shortly after trial began, Small moved to excuse and question jurors 5 and 11,

based on concerns that the incident outside the jury room “would influence their verdicts

in such a way that they would no longer be . . . fair and impartial jurors . . . .” J.A. 87-88.

The district court declined to take either step, finding that the defendant’s requested relief

was not warranted based on the sparse information presented.

       Small now appeals the district court’s denial of these three motions.

                                              II.

                                              A.

       Under 

, a person commits the crime of federal carjacking if he or

she, “(1) with intent to cause death or serious bodily harm (2) took a motor vehicle (3) that

had been transported, shipped or received in interstate or foreign commerce (4) from the

person or presence of another (5) by force and violence or intimidation.” United States v.


       1
        At times, the government implies that its limited uses of Small’s phone prior to
obtaining a warrant did not qualify as searches for Fourth Amendment purposes. See
Appellee’s Br. at 14, 26-28. Because this issue was not fully briefed and ultimately does
not impact our holding, we will simply assume for the purposes of our analysis that four
warrantless searches of Small’s phone occurred. Infra Section III.

                                              

 F.3d 233, 246-47 (4th Cir. 2007) (quoting United States v. Applewhaite, 

 (3d Cir. 1999)).

       Section 2119’s mens rea component, a specific intent requirement, is satisfied

whether the defendant unconditionally or conditionally “inten[ded] to cause death or

serious bodily harm,” 

, during a carjacking. Holloway v. United States,

 (1999). That is, the government need not prove that the defendant intended

to cause death or serious harm “if unnecessary to steal the car,” so long as it shows that “at

the moment the defendant demanded or took control over the driver’s automobile the

defendant possessed the intent to seriously harm or kill the driver if necessary to steal the

car . . . .” 

 (emphasis added).

       To establish conditional intent, the government must provide evidence above and

beyond “an empty threat, or intimidating bluff” made by the defendant during the

carjacking. Holloway, 

. Section 2119’s “by force and violence or by

intimidation” actus reus requirement remains distinct from its mens rea requirement: an

empty threat would satisfy the former but not the latter. 

. If the defendant were

unwilling to follow through on an intimidating bluff, then he would lack the intent “to

seriously harm or kill the driver if that action had been necessary to complete the taking of

the car.” 

 With these points in mind, we turn to the facts of the case at hand.

                                              B.

       Small claims that there is insufficient evidence to sustain his conspiracy and

carjacking convictions, and that the district court erred in denying his motion to this effect.

Specifically, Small contends that the government failed to present sufficient evidence for

                                              11
a reasonable juror to find that he or his coconspirators acted with “intent to cause death or

serious bodily harm” as required by 

.

       A defendant who challenges the sufficiency of the evidence “faces a heavy burden.”

Foster, 507 F.3d at 245. A jury verdict will be sustained so long as “there is substantial

evidence in the record to support it.” United States v. Wilson, 

 (4th Cir.

1999). When evaluating the sufficiency of the evidence, “we view the evidence in the light

most favorable to the government,” 

 and ask whether “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt,” Jackson v.

Virginia, 

 (1979) (emphasis in original).

       Small fails to carry his burden. There is substantial evidence in the record from

which a reasonable juror could conclude that Small or his coconspirators intended to

seriously harm or kill Rowe if necessary to steal his vehicle. The facts of this case are

chilling: no ordinary vehicle theft took place here. Rowe was walking alone at night on a

deserted street. He was accosted by three men—wearing masks—one of whom was holding

a gun. The armed assailant demanded everything Rowe had while pointing the gun “in [his]

face.” J.A. 181. The gun would remain trained on Rowe, only a foot from his head,

throughout the entire interaction. Furthermore, the assailants made physical contact with

their victim; when Rowe said he had only keys on him, they “patted [him] down” and “felt

in [his] pockets.” J.A. 182-83. Even after Rowe’s assailants had his car keys, they tried to

make him follow them to another location. All of this evidence allowed the jury to infer

that Small or his coconspirators possessed the intent to seriously harm or kill Rowe if

necessary to steal his car.

                                             12
       Although juries evaluating intent are entitled to consider the entirety of the

circumstances surrounding a carjacking, see United States v. Fekete, 

(6th Cir. 2008), two facts are of particular note in the case at hand: (1) an assailant pointed

a gun at Rowe; and (2) an assailant made physical contact with Rowe. First and foremost,

an assailant’s wielding a gun provides a strong indication of intent to inflict bodily harm if

met with resistance, particularly when “the perpetrator[] did not merely display a

gun . . . but rather pointed the gun at the [victim] in demanding car keys and other

possessions.” United States v. Franklin, 

 (4th Cir. 2013); see also

United States v. Robinson, 

 (4th Cir. 2017) (finding “plenty of evidence

of . . . intent” when the defendant pointed a gun at the carjacking victim’s head and

threatened her); Foster, 507 F.3d at 247 (finding element of intent satisfied when the

defendant held a gun to the victim’s head, ordered him out of the car, and refused him

reentry).

       In addition, an assailant’s physical touching of a victim during a carjacking—

whether by hand or with a weapon—supports a jury’s finding of intent. See Franklin, 

 (finding that a defendant’s “‘grop[ing]’ [of] one of the vehicle’s passengers

[while] searching for items to steal” supported the jury’s finding of intent); Fekete, 

 (noting that courts often look to “whether there was physical violence or

touching” to determine whether § 2119’s intent requirement is satisfied). And while the

gunman here did not touch his weapon to Rowe’s head, he very nearly did so by pointing

it from only a foot away. See United States v. Adams, 

 (6th Cir. 2001)

(adopting a general rule that “physically touching a victim with a weapon, standing

                                              13
alone, . . . indicates an intent on the part of the defendant to act violently” as required by

§ 2119); cf. United States v. Bailey, 

 (4th Cir. 2016) (declining to find

§ 2119’s intent element satisfied when the defendant held an object to the victim’s neck

but there was no evidence that it was a weapon).

          Small attempts to undermine the jury’s finding by noting several characteristics of

the carjacking at hand: first, Rowe’s assailants did not verbally threaten him; second, the

government did not present proof that the gun was loaded; and third, Rowe’s assailants did

not harm him when he failed to follow certain instructions. While it is true that these factors

are relevant to intent, none are dispositive. They speak to evidentiary weight, a matter that

belongs with the jury. Jackson, 

 (“Th[e] [sufficiency of the evidence]

standard gives full play to the responsibility of the trier of fact . . . to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts.”); Robinson, 

.

          Take the lack of verbal threats. While verbally threatening the victim can certainly

help establish intent, see Robinson, 

, there is no bar to finding intent in

cases that lack verbal threats, see Foster, 507 F.3d at 247. Indeed, it is difficult to imagine

a more effective threat than holding a gun to someone’s head. A reasonable juror in the

case at hand could well conclude that Rowe’s assailants were letting the gun do the talking.

          Nor does the lack of proof that the gun was loaded decide this case. Fekete, 

 (“[T]he issue of whether a carjacker’s firearm was loaded has generally not

been treated by the courts as outcome-dispositive. Rather, the courts have looked at the

totality of the relevant circumstances . . . .”). The carjacking statute does not require the

                                               14
use of a loaded gun; it requires that a defendant have the “intent to cause death or serious

bodily harm.” 

; see also Fekete, 

. Here, the government

presented testimony from gun owner Caswell and military veteran Dougherty indicating

that their masked assailant’s weapon was real. Rowe believed so as well. And as too many

crime victims know, even an unloaded firearm is capable of causing harm. See Fekete, 

 (noting the danger of pistol-whipping). Based on the evidence presented here,

a reasonable juror could conclude that—even if Rowe’s assailants carried an unloaded

gun—“[they] nonetheless had the requisite conditional intent to cause death or serious

bodily harm by other means (e.g., pistol-whipping or brute force),” 

       Finally, Small alludes to the fact that Rowe’s assailants did not harm him when he

failed to follow their instructions. But this is not persuasive. Under § 2119, the defendant’s

intent is examined as of “the precise moment he demanded or took control over the car.”

Holloway, 

 (emphasis added). Although Rowe refused to give his assailants

his house keys, likely to avoid endangering his fiancée, he turned over his car keys instantly

and without protest. A reasonable juror could conclude that this scenario would have

played out differently, even tragically, if Rowe had also refused to turn over his car keys.

Similarly, while Rowe refused to follow his assailants to an unknown location, this

occurred after he had already handed over his car keys. A reasonable juror could conclude

that Rowe’s assailants felt no need to harm him at that point because they already had

something of value—his car keys.

       Small next argues that a finding of intent in the case at hand would place our circuit

in conflict with others. As Small notes, two circuits have held that merely brandishing a

                                             15
gun is insufficient as a matter of law to demonstrate an “intent to cause death or serious

bodily harm,” 

. Fekete, 

 (“[I]n the absence of a physical

touching or direct proof that the firearm was loaded, the government must establish

‘brandishing-plus’ in order to satisfy § 2119’s specific intent element.”); United States v.

Randolph, 

 (9th Cir. 1996) (“We conclude that the brandishing of a

weapon, without more, does not support an inference of specific intent under § 2119.”),

abrogated by Holloway, 

 (1999).

       As an initial matter, it is unclear that our holding conflicts with those of our sister

circuits. To the extent that “more” than brandishing is required to establish intent, Rowe’s

assailants did not merely “brandish” a gun. They pointed and trained it at his head. They

physically touched Rowe during the carjacking, when they patted him down. As such, the

“brandishing-plus” test from Fekete would not apply: it is used “in the absence of a physical

touching” of the victim. Fekete, 

. If we have any disagreement with

our sister circuits—and it is not clear we do—it is limited to precisely when the question

of intent switches from one of fact for the jury, see Robinson, 

, to one of

law for the courts. Put another way, after a jury has found § 2119’s specific intent

requirement satisfied and returned a verdict of guilty under unexceptional instructions,

when can a court step in and proclaim that no reasonable jury could have reached that very

conclusion? Jurors excel in cases such as this, where they are asked to apply their common

sense to the factual scenario before them. Thus, we have cautioned that “[c]ourts must resist

invading the jury’s province by transforming questions of fact into matters of law.”

Robinson, 

. We decline to invade the jury’s province here. The carjacking

                                             16
and conspiracy charges against Small were properly submitted to the jury, and the jury

returned a verdict of guilty.

       Jury verdicts are entitled to respect. The jury here found that Small or his

coconspirators possessed the “intent to cause death or serious bodily harm,” 

, when in the course of taking his car they demanded at gunpoint that Rowe hand

over everything he had. We decline to overturn the jury’s conclusion on this question of

fact, since “it is clearly the jury’s duty, not ours, to decide it.” Robinson, 

.

                                              III.

                                              A.

       We next address Small’s Fourth Amendment challenge. The Fourth Amendment

protects “[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” U.S. Const. amend. IV. To safeguard this

right, courts apply an exclusionary rule, which dictates that “evidence obtained in violation

of the Fourth Amendment cannot be used in a criminal proceeding against the victim of

the illegal search and seizure.” United States v. Calandra, 

 (1974).

Although warrantless searches are generally considered “per se unreasonable under the

Fourth Amendment,” this generality is subject “to a few specifically established and well-

delineated exceptions.” Arizona v. Gant, 

 (2009) (quoting Katz v. United

States, 

 (1967)). One such exception is abandonment. Abel v. United

States, 

 (1960) (“There can be nothing unlawful in the Government’s

appropriation of . . . abandoned property.”); United States v. Leshuk, 

(4th Cir. 1995) (“The law is well established that a person who voluntarily abandons

                                              17
property . . . is consequently precluded from seeking to suppress evidence seized from the

property.”).

       A finding of abandonment is based “not [on] whether all formal property rights have

been relinquished, but whether the complaining party retains a reasonable expectation of

privacy in the articles alleged to be abandoned.” United States v. Haynie, 

 (4th Cir. 1980) (quoting United States v. Wilson, 

 (9th Cir. 1973)).

To determine whether the defendant maintains a reasonable expectation of privacy in an

item, the court performs “an objective analysis” which considers the defendant’s actions

and intentions. United States v. Davis, 

 (D. Md. 2009), aff’d,

 (4th Cir. 2012). “Intent [to abandon] may be inferred from words spoken,

acts done, and other objective facts.” 

 at 648 (quoting United States v. Hoey, 

 (8th Cir. 1993)).

                                             B.

       Small contends that the district court erred in denying his motion to suppress the

fruits of the warrantless searches of his cell phone. Specifically, Small alleges that there

was insufficient evidence for the court to conclude that the phone was abandoned and that

no warrant was required for the initial searches.

       In reviewing a district court’s denial of a motion to suppress, we review legal

determinations de novo and factual findings for clear error. United States v. Lull, 

 (4th Cir. 2016). The government bears the burden of proving the admissibility of

evidence obtained pursuant to a warrantless search by a preponderance of evidence. See



                                             18
United States v. Matlock, 

, 178 n.14 (1974); United States v. Helms, 

 (4th Cir. 1983).

       In determining whether this standard is met, we may consider both the evidence

before the district court at the suppression hearing and “evidence adduced at trial that

support[ed] the district judge’s ruling.” United States v. Han, 

 (4th Cir.

1996); see also Carroll v. United States, 

 (1925). Still, there are temporal

limitations on evidence used in our analysis: we evaluate whether the defendant intended

to abandon an item using only objective information available to officers at the time they

performed the warrantless search. United States v. Nowak, 

 (8th Cir.

2016) (per curiam); Bond v. United States, 

 (7th Cir. 1996). As the

Supreme Court has noted, the reasonableness of a search is evaluated based on “the facts

known to the police” at the time. United States v. Banks, 

 (2003). A

Fourth Amendment search “is good or bad when it starts.” United States v. Di Re, 

 (1948).

       Abandonment should not be casually inferred. People lose or misplace their cell

phones all the time. But the simple loss of a cell phone does not entail the loss of a

reasonable expectation of privacy. Thus, such ordinary mishaps do not constitute

“abandonments.” Rather, as the district court noted, “[t]here has to be some voluntary

aspect to the circumstances that lead to the phone being what could be called abandoned.”

J.A. 41. Here there clearly was.

       The evidence before the district court depicts a fleeing suspect tossing aside

personal items while attempting to evade capture. Small fled on foot after crashing through

                                             19
the NSA gates, leaving his vehicle and its contents behind. Search personnel would

continue to find Small’s personal items strewn about during the manhunt. At 1:45 am,

officers located a bloody shirt and hat in the vicinity of the crashed car. The obvious

conclusion is that these items—or, at the very least, the shirt—were purposefully removed

and tossed aside. Several hours later, around 5:00 am, officers located a cell phone only

fifty yards from the shirt and hat. The phone was found in a grassy area, not on a sidewalk

or “a place where [someone] normally might be.” J.A. 43.

       Based on these circumstances, the district court’s inference that Small abandoned

the phone seems sensible. Because a cell phone’s GPS tracking can “lead you to a

defendant,” J.A. 39, it is credible that a fleeing suspect might intentionally discard his

phone. And while phones occasionally slip out of pockets, shirts do not accidentally fall

off their wearers—at the exact same moments as hats—and cars do not ditch themselves

after a crash. The fleeing suspect’s relinquishment of the car, the hat, and the shirt near

where the cell phone was found support the district court’s finding of abandonment.

       The district court relied heavily on these circumstances to reach its conclusion that

Small no longer had a “reasonable expectation of privacy in th[e] phone.” J.A. 42-43. Small

“is fleeing from the police, he crashes through a gate in a place where he is not supposed

to be. He’s clearly left the car. Items are being left behind, the bloody shirt and hat being




                                             20
one of them.” J.A. 42. Further, the court noted that there was no evidence Small attempted

to retrieve his phone at any point, even though it wasn’t password protected. 2

       Evidence gleaned from trial testimony points in the same direction. This testimony

demonstrates why search personnel could reasonably conclude at the time of the search

that the phone belonged to the suspect-at-large. While the government briefly noted at the

suppression hearing that the NSA went on “lockdown” when Small crashed through the

fence, J.A. 27, trial testimony from several search personnel gave a more complete picture

of the scope of the manhunt. The testimony suggests that few people besides the suspect

and search personnel were out-and-about in the hours before the phone was found.

       As trial testimony established, the cell phone was found in a large crime scene, not

in a crowded public area. An Anne Arundel police officer radioed during the car chase for

“aviation assets” and “K-9 assets.” J.A. 74. After Small entered Fort Meade but before he

crashed through the NSA fence, an Army sergeant locked the Fort Meade gates and only

reopened them to allow entry by search personnel. After the crash, an NSA police captain

established a perimeter within the NSA and led a thorough, methodical search for the

suspect. Search personnel could well believe that this phone—located during the early




       2
         Citing Riley v. California, 

 (2014), Small contends that even if he
abandoned his physical phone, he did not abandon its digital contents. Appellant’s Opening
Br. at 44-45. We do not find this argument persuasive. While Riley held that “the search
incident to arrest exception does not apply to [digital information stored on] cell phones,”
it emphasized that “other case-specific exceptions may still justify a warrantless search of
a particular phone.” 

. For the reasons noted, this is such a case.

                                            21
morning hours in a grassy area in a facility on lockdown—belonged to the fleeing suspect

who deliberately abandoned it during flight.

       When Small discarded the phone, he ran the risk that complete and total strangers

would come upon it. In tossing his phone, he relinquished his reasonable expectation of

privacy in it as well. The district court’s decision to deny suppression shall be affirmed.

                                             IV.

                                             A.

       The Sixth Amendment guarantees a criminal defendant the right to be tried before

an impartial jury. U.S. Const. amend. VI. In order to safeguard this right, the Supreme

Court has held that “[i]n a criminal case, any private communication, contact, or tampering,

directly or indirectly, with a juror during a trial about the matter pending before the jury

is . . . deemed presumptively prejudicial.” Remmer v. United States, 

(1954). If the Remmer presumption is met, the defendant is entitled to an evidentiary

hearing in which the government bears the burden of showing “that such contact . . . was

harmless to the defendant.” 

; Haley v. Blue Ridge Transfer Co., 

 (4th Cir. 1986).

       Because it is difficult to fully shield juries from the outside world, see Smith v.

Phillips, 

 (1982), we tolerate certain instances of extrajudicial contact

that “amount to nothing more than innocuous interventions that simply could not justify a

presumption of prejudicial effect,” Haley, 

 n.9; see also Stockton v.

Virginia, 

 (4th Cir. 1988). Thus, in order to trigger Remmer’s

presumption of prejudice, “the defendant must first establish both that an unauthorized

                                             22
contact was made and that it was of such a character as to reasonably draw into question

the integrity of the verdict.” Stockton, 

.

       To determine whether a contact was innocuous, we “turn to the [five] factors the

Supreme Court deemed important” in Remmer: “(1) any private communication; (2) any

private contact; (3) any tampering; (4) directly or indirectly with a juror during trial; (5)

about the matter before the jury.” United States v. Cheek, 

 (4th Cir. 1996).

                                              B.

       The day Small’s trial began, jurors 5 and 11 approached the Courtroom Deputy with

concerns that individuals outside the jury room had been “watching” them when they left

the courthouse the previous evening. J.A. 49. The jurors did not indicate much else. Small

contends that his Sixth Amendment right to an impartial jury was violated by the district

court’s failure to excuse and question jurors 5 and 11. For this reason, he requests that his

convictions be vacated and his case remanded for a new trial.

       We review the district court’s decision not to question or excuse jurors after

allegations of improper contact under “a ‘somewhat narrowed,’ modified abuse of

discretion standard” that allows the appellate court “more latitude to review the trial court’s

conclusion” on the potential for prejudice. Cheek, 

 (quoting Haley, 

 n.11-12); see also United States v. Basham, 

 (4th Cir. 2009).

       Under this standard, we see nothing problematic about the district court’s denial of

Small’s motion to voir dire and excuse jurors 5 and 11. To invoke the Remmer presumption

and the right to an evidentiary hearing, Small bore the initial burden of “introducing

competent evidence that the extrajudicial communications or contacts were ‘more than

                                              23
innocuous interventions.’” Cheek, 

 (quoting Haley, 

 n.9).

He has failed to do so.

       As an initial matter, it is hardly clear that a vague report of “watching,” without

more, constitutes evidence of “extrajudicial communications or contacts,” Cheek, 

; see also United States v. Baptiste, 

 (4th Cir. 2010) (declining

to reach the question of whether stares from a crowd constituted unauthorized contact). We

are unaware of any case where a defendant attempted to invoke the Remmer presumption

based on “watching” alone. “Watching” can hardly be described as “communication” or

“contact,” both of which imply an active exchange of information of some sort.

Unsurprisingly, most precedent discussing extrajudicial contact involves spoken words.

See, e.g., Basham, 

 (juror called local news outlets about the trial

before the jury reached a verdict); Stockton, 

 (local business owner

told the jurors that “they ought to fry the son of a bitch” in a death penalty case). Watching

may be done passively and, unless context indicates otherwise, conveys little information.

       Of course, “watching” may take on an extreme and sinister character, but here there

is no evidence that it was anything “more than [an] innocuous intervention[],” Cheek, 

. The episode occurred in a common area of a busy courthouse. There was no

reason for the jurors to associate the unknown individuals with Small. Indeed, there was

no indication that the incident was in any way related to Small’s case, “the matter before

the jury,” Cheek, 

.

       “The trial court must be afforded wide discretion in handling matters relating

to . . . the integrity of the jury.” United States v. Johnson, 

 (4th Cir. 1981).

                                               24
Here the district judge took reasonable steps based on the jurors’ reports. He did not dismiss

or trivialize their concerns. Instead, he increased security around the jury room. Further, he

ensured that jurors 5 and 11 were aware of where to find security personnel, encouraged

them to report any further concerns, and provided clear instructions on how to do so.

       The district judge had good reason to be wary of a more searching inquiry. As he

later noted:

       Stopping a trial to separately voir dire particular jurors about potential
       improper influence has its own potentially deleterious impact. Just that
       questioning process could plant in jurors’ minds the notion that perhaps
       something untoward is afoot. . . . In this case, the totality of the information
       presented to the [c]ourt did not warrant th[is] sort of inquiry . . . .

J.A. 765. We agree. The judge took a measured, thoughtful approach to the jurors’

concerns. These modest steps were proportionate to what the situation required. We find

that the district court did not abuse its discretion by declining to question and excuse jurors

5 and 11.

                                              V.

       For the foregoing reasons, we reject Small’s challenges to the proceedings below

and affirm his convictions.

                                                                                AFFIRMED




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