United States v. Williams ( 2021 )

Case: 20-50325 Document: 00515743139 Page: 1 Date Filed: 02/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-50325 February 12, 2021
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Danny Ray Williams,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:19-CR-204-1
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Danny Ray Williams was convicted by a jury trial of possession with
the intent to distribute 50 grams or more of methamphetamine in violation of
21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(A) and was sentenced to 151
months imprisonment. He makes two arguments on appeal: that a police dog
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-50325
jumping into his car before probable cause was established violated his
Fourth Amendment rights, and that he did not consent to a forensic
download of his cellphone. Additionally, he asserts that even if he did
consent to the cellphone search, the forensic download exceeded the scope
of that consent.
Under both issues, there is a dispute about the appropriate standard
of review. Both parties agree that Williams failed to move for suppression
pretrial. The Government contends that because the motion was untimely,
it should be review for plain error. Williams argues that the facts underlying
the rulings should be reviewed for clear error and the legal rulings should be
reviewed de novo. He asserts that because the trial court ruled on the merits
of his objection instead of simply dismissing them as untimely, the court
implicitly found good cause under Fed. R. Crim. P. 12(c)(3). Under
Williams’s more stringent standard, “[a] factual finding is not clearly
erroneous as long as it is plausible in light of the record as a whole.” United
States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). The court reviews the
evidence in the light most favorable to the government as the prevailing party.
Id. Ultimately, this court does not need to make a ruling on this issue, as
Williams’s claims fail under either standard of review.
Williams’s first argument is that the narcotics-sniffing dog jumping
into his car before probable cause was established amounted to an
unreasonable search under the Fourth Amendment. The Government
counters that the dog’s jump was permissible, as the Midland Police
Department [MPD] already had probable cause before the dog was called to
the scene. The Government’s argument is convincing.
Warrantless searches of cars are permitted if they are supported by
probable cause. United States v. Seals, 987 F.2d 1102, 1107 (5th Cir. 1993)
(citing United States v. Ross, 456 U.S. 798 (1982)). Probable cause “is a fluid
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concept—turning on the assessment of probabilities in particular factual
contexts—not readily, or even usefully, reduced to a neat set of legal rules.”
United States v. Massi, 761 F.3d 512, 524 (5th Cir. 2014) (quoting Illinois v.
Gates, 462 U.S. 213, 232 (1983)). The threshold for probable cause “is
something more than a bare suspicion, but need not reach the fifty percent
mark.” United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999). Such
determinations “are not to be made on the basis of factors considered in
isolation, but rather on the totality of the circumstances.” United States v.
Banuelos-Romero, 597 F.3d 763, 767 (5th Cir. 2010) (quoting United States v.
Reed, 882 F.2d 147, 149 (5th Cir. 1989)). Factors this court looks to when
determining the reliability of an informant’s information are personal
credibility, corroboration, specificity and recency. United States v. Powell,
732 F.3d 361, 372 (5th Cir. 2013). Based on the totality of the circumstances,
the MPD had probable cause to search Williams’s car before the dog jumped
into the window, so no unconstitutional search occurred.
Williams’s second argument is that he did not give valid consent for
the warrantless search of his cellphone. He also asserts that, even if he did
give consent, that consent was restricted. Again, Williams’s claim fails under
either standard of review.
The Government does not need a search warrant to conduct a search
if “it receives: (i) consent; (ii) that is voluntarily given; (iii) by someone with
actual or apparent authority; and (iv) the search does not exceed the scope of
the consent received.” United States v. Staggers, 961 F.3d 745, 757 (5th
Cir.)(quoting United States v. Freeman, 482 F.3d 829, 831-32 (5th Cir. 2007)),
cert. denied, 141 S. Ct. 388 (2020). Warrantless consent searches of cell
phones are permitted. See United States v. Gallegos-Espinal, 970 F.3d 586 (5th
Cir. 2020), cert. denied, 2021 WL 161096 (U.S. Jan. 19, 2021) (No. 20-6445);
United States v. Rounds, 749 F.3d 326, 338 (5th Cir. 2014).
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Consent “does not need to be explicit, but it can be inferred from
silence or failure to object to a search only if that silence follows a request for
consent.” Staggers, 961 F.3d at 757 (quoting United States v. Jaras, 86 F.3d
383, 390 (5th Cir. 1996)). It “may also be inferred from actions that
reasonably communicate consent.” Id. (quoting United States v. Lewis, 476
F.3d 369, 381 (5th Cir. 2007)). Whether or not consent was given is analyzed
under the totality of the circumstances. Freeman, 482 F.3d at832. Under the
totality of the circumstances, it is clear that Williams consented to the search
of his phone.
Unlike the threshold question of whether or not consent was given,
the scope of the consent is determined under a reasonable-officer standard.
Id. at 832. If the scope of the consent is ambiguous, “the defendant has the
responsibility to affirmatively limit its scope.” United States v. Sarli, 913 F.3d
491, 495 (5th Cir.), cert. denied, 139 S. Ct. 1584, 203 L. Ed. 2d 741 (2019).
Even if we assume that Williams’ objection to the officers viewing
some sexually explicit videos was an affirmative limitation of the scope of
consent, Williams was not prejudiced by this error in any way as the videos
in question were not admitted into evidence. While the Fourth Amendment
does apply to all searches and not just those that produce information entered
into evidence, the doctrine of harmless error applies to questions of
unconstitutional search and seizure. Chambers v. Maroney, 399 U.S. 42, 53
(1970). This court has held that it is not necessary to rule on improperly
obtained evidence when that evidence is not admitted at trial. United States
v. Jones, 457 F.2d 697, 698 (5th Cir. 1972). This court has also excused other
constitutional violations on the grounds that the evidence obtained was not
admitted at trial. See, e.g., United States v. Brent, 300 F. App’x 267, 271 (5th
Cir. 2008) (concerning a possible Fifth Amendment violation); United States
v. Lopez-Moreno, 420 F.3d 420, 435 (5th Cir. 2005) (mooting a Sixth
Amendment violation). Accordingly, even if it was error for the MPD to do
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a forensic download of all the phone’s data, thus exceeding the scope of
Williams’ consent, the error was harmless.
Viewing the evidence in the light most favorable to the Government,
Williams has failed to make the requisite showing and his conviction is
AFFIRMED.
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