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United States v. Dorsey

United States District Court, D. Maryland

August 13, 2019

UNITED STATES OF AMERICA
v.
JAMES DORSEY, et al., Defendants.

          MEMORANDUM OPINION

          RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE

         On October 12, 2015 twenty-year-old Markel Benson was robbed as he was selling marijuana on a street corner near 2300 W. North Avenue in Baltimore, Maryland. A short time later, he was murdered. Defendants James Dorsey (“Dorsey”), Ameer Khalil Baker (“Baker”), [1] Deonta Douglas (“Douglas”), and Sim Redd (“Redd”) are alleged to have participated in the criminal acts surrounding Benson's death. The Superseding Indictment charges Dorsey, Baker, and Douglas with conspiracy to interfere with commerce through robbery in violation of 18 U.S.C. § 1951(a) (Count One); interference with commerce through robbery in violation of 18 U.S.C. § 1951(a) (Count Two); and using, brandishing, and discharging a firearm during a crime of violence (Count Three). Redd, the alleged getaway driver, is charged with accessory after the fact (Count Four).

         Now pending before this Court are: Defendant Dorsey's Motion to Suppress Warrant Evidence (ECF No. 44); Defendant Sim Redd's Motion for Severance (ECF No. 71-1); Defendant Dorsey's Motion to Sever (ECF No. 72-1); and Defendant Dorsey's Motion to Dismiss (ECF No. 73), which is joined by Defendants Baker and Douglas. On July 18, 2019, this Court conducted a Motions Hearing and heard argument and testimony in support of the pending motions. For the reasons stated herein, Defendant Dorsey's Motion to Suppress Warrant Evidence (ECF No. 44) is DENIED; Defendant Sim Redd's Motion for Severance (ECF No. 71-1) is DENIED; Defendant Dorsey's Motion to Sever (ECF No. 72-1) is DENIED; and Defendant Dorsey's Motion to Dismiss (ECF No. 73) is DENIED. A joint trial will commence on Monday, September 9, 2019.

         BACKGROUND

         I. The Robbery and Murder.

         This case arises from the murder of Markel Benson on October 12, 2015 at 6:56 p.m., in the 2100 block of Clifton Avenue in Baltimore, Maryland. At trial, the Government will attempt to prove that several men, including Defendants Dorsey, Baker, and Douglas conspired to rob Benson after seeing him sell marijuana on a street corner outside of the Pak Man Chicken Restaurant situated on 2300 W. North Avenue in Baltimore, Maryland. Three of the men, including Douglas, allegedly approached Benson on foot. A coconspirator pointed a gun at Benson and robbed him of marijuana, cash and two cellular phones. After the robbery, the men fled the scene. At trial, the Government will attempt to elicit testimony from eyewitnesses who claim to have seen Dorsey, Baker, and Douglas participate in the robbery and can recount their roles in the crime.

         After he was robbed, Benson allegedly obtained his own gun and searched for the defendants in an ill-fated attempt to retrieve his stolen property. The Government represents that CCTV street camera footage depicts Benson and his associate walking together minutes before shots were fired. As Benson searched for the robbers, Douglas allegedly directed codefendants Baker and Dorsey to ambush and shoot Benson. At 6:56 p.m., the Government alleges that Baker and Dorsey heeded Douglas's orders, shot Benson, and fled. Benson did not return fire and was killed.

         II. Phone Calls Following the Crime.

         Several phone calls allegedly followed the robbery and homicide. Moments after the shooting, Baker allegedly used Benson's stolen cell phone to attempt to contact his “step” grandmother (the mother of his stepfather) and a coconspirator. Later that evening, Redd allegedly accepted two calls from an inmate in a Baltimore correctional facility named Delonte Lang.[2] The Government intends to rely heavily on Redd's calls at trial; in its view, they present a “chilling timeline of Baker and Dorsey's flight after the shooting.” (Gov't Resp. 3, ECF No. 51.)

         In the first call, recorded at 7:47 p.m., Redd makes a series of statements which a jury could interpret as both implicating Redd as the getaway driver for his codefendants and corroborating the allegations that Dorsey robbed and shot Benson. Recounting the evening's events, Redd can be heard bragging that his “little man” (an apparent reference to Dorsey) “earned his way . . . about half an hour ago” and showed “no hesitation.” (Gov't Ex. A at 5, ECF No. 85-1.) Redd also recounts that “he” (Dorsey) called him (Redd) and exclaimed “come get me, come get me, come get me, come get me[!]” (Id. at 12.) Redd recalls to Lang that he replied, “I'm on my way.” (Id.)

         Another jail call followed at 9:21 p.m. Redd's statements in this call could support the conclusion that Redd and his codefendants were together shortly after the robbery and homicide. In the recording, Redd tells Lang that “We just pulled up down outback” and that he has “both of them with me. Me, Ameer, [(Baker)] and Boosie [(Dorsey)] together.” (Gov't Ex. B at 3, ECF No. 85-2.)

         Lang and Redd have denied that these conversations reference anything incriminating. Federal authorities interviewed both Lang and Redd and questioned them before the grand jury. In these exchanges, Redd claimed that he was discussing a basketball tournament and that the “Boosie” and “Meer”[3] he referenced in the call were not Dorsey and Baker. (ECF No. 72-1 at 8.) The Government maintains that both Redd and Lang committed perjury by providing different and contradictory explanations for the call. (ECF No. 85 at 16.)

         III. Search and Seizure of Dorsey's Cell Phone.

         During the investigation of this case, the FBI seized Dorsey's cell phone and subsequently obtained a warrant from U.S. Magistrate Judge Stephanie A. Gallagher to search its contents. The Baltimore Police Department had originally seized the phone after state authorities arrested him for drug trafficking and a handgun violation on December 29, 2015. (Gov't Consolidated Motions Response to Defendants' Pretrial Motions 4, ECF No. 51.) On April 5, 2016, Dorsey pled guilty to the handgun charge. (Def.'s Supp. Resp. 1, ECF No. 90.) On August 7, 2016, the Baltimore Police Department arrested Dorsey for attempted first degree murder. (Id.) Throughout this period, Dorsey's cell phone remained in police custody. Although it is undisputed that Dorsey was not in custody for at least some period between the initial seizure of his phone and his August 2016 arrest (see Def.'s Reply 2 n.1, ECF No. 95), Dorsey made no attempt to retrieve his cell phone. Dorsey maintains that any efforts to reclaim the phone would have been futile as it was considered evidence and would be retained by local authorities until the time had expired for him to challenge the sentence imposed for the firearm offense. (Id.)

         On November 4, 2016, the FBI learned that the phone remained in Baltimore Police Department custody and retrieved it from that agency. Before searching the phone, Special Agent William Filbert of the FBI began drawing up the paperwork necessary to obtain a warrant from a United States Magistrate Judge. His collaboration with the Office of the United States Attorney is memorialized in a series of emails introduced as an Exhibit and presented to Agent Filbert during his testimony at the Motions Hearing. On November 17, 2016, Agent Filbert provided a draft affidavit in support of a warrant application to Assistant United States Attorney Sandra Wilkinson. On November 21, 2016, Wilkinson returned her edits to the affidavit to Filbert and indicated, in effect, that the final warrant application should await submission to the federal magistrate until work on another warrant could be completed. This separate warrant application sought judicial authorization to search a store containing bullet holes believed to be connected to Benson's murder and involved coordination with an FBI evidence team based in Quantico, Virginia. On December 22, 2016, Wilkinson sent Filbert an email indicating that both warrant applications were ready to be submitted on December 27, 2016-after the Christmas holiday.

         In the final version of the warrant affidavit, Agent Filbert set forth the grounds supporting probable cause to search Dorsey's phone. Filbert suspected that Keyon Hawkins (“Hawkins”) was among those who had robbed Benson at gunpoint on October 12, 2015 in front of the Pak Man Chicken Restaurant. (Affidavit of Special Agent William Filbert (the “Affidavit”) at ¶ 8, ECF No. 44-1.) On October 19, 2016 Keyon Hawkins admitted that he had robbed Benson of his two cell phones and a bag of weed[4] and that he had been with Dorsey and Baker at the time. (Id. at ¶¶ 9-10.) After the robbery, Hawkins claimed to have seen Baker and Dorsey run down an alley towards Clifton Avenue just as Benson and his associates were walking on Pulaski toward Clifton. (Id. at ¶ 11.) Hawkins then heard three gun shots. (Id.) Agent Filbert also averred that cell phones were being used during these events. The affidavit explains that Agent Filbert knew “based on phone records and interviews with witnesses, that Benson's stolen cell phone was used after the murder” and that, in his estimation, it was “highly likely” that Baker had made the calls. (Id. at ¶ 12.) The affidavit also stated the following:

I know that cellular phones were used to communicate with individuals with knowledge of and who participated in the Benson robbery and murder as described herein. I know that there are unidentified cellular telephone numbers that communicated with Hawkins and others both before and after the Benson homicide and that this information is likely relevant to the investigation herein.

(Id. at ¶ 17.)

         On December 27, 2016, United States Magistrate Judge Stephanie A. Gallagher of this Court issued two search warrants. (ECF Nos. 44-1, 90-1.) The first warrant authorized the search of Dorsey's phone, a “A Dark-colored Verizon Samsung Telephone, Model SM-B311V, MEID HEX: A000004BEC923A.” (ECF No. 44-1.) The second warrant authorized the search of the exterior structure of 2101 N. Pulaski St., Baltimore, MD 21217. (ECF No. 90-2.)

         ANALYSIS

         I. Motion to Suppress Warrant Evidence.

         Defendant James Dorsey has moved this Court to suppress “any direct and derivative evidence obtained in connection with the unlawful seizure and search of a cellular telephone recovered from him in December 2015.” (Mot. to Suppress Warrant Evidence 1, ECF No. 44.) Dorsey argues that this evidence must be suppressed for three reasons. His primary objection to the search of his phone is that the Government unreasonably acted with “extreme delay” in obtaining a search warrant. (Id. at ¶ 10.) Dorsey also contends that the affidavit used to support the Government's search warrant application fails to establish probable cause to support a search of the cell phone. (Id. at ¶ 11.) Finally, Dorsey argues that the search warrant itself fails to satisfy the particularity requirement. (Id. at ¶ 12.) This Court addresses these arguments seriatim.

         A. The Government's Delay in Obtaining a Search Warrant Was Not Unreasonable.

         Dorsey first argues that the search of his cell phone was unreasonable, regardless of the validity of the search warrant, because the Government waited about 53 days (between November 4, 2016 and December 27, 2016) before obtaining a warrant to search its contents after acquiring the phone from the Baltimore Police. (Id. at ¶ 1.) Dorsey also suggests that the Government's delay is especially unreasonable in light of the fact that the Baltimore Police had been in possession of Dorsey's phone for roughly a year by the time the Government obtained a warrant in December 2016. (Id. at ¶¶ 1-2.) The Government responds that the search and seizure of his phone was not unreasonable because Dorsey had a diminished possessory interest in his personal effects by virtue of his incarceration and, alternatively, that Dorsey abandoned his phone because he made no effort to reacquire it after its seizure from the Baltimore Police. (Gov't Supp. Resp. 2-4, ECF No. 90.)

         The Fourth Amendment to the United States Constitution prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV. “A seizure that is ‘lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests.'” United States v. Pratt, 915 F.3d 266, 271 (4th Cir. 2019) (quoting United States v. Jacobsen, 466 U.S. 109, 124, 104 S.Ct. 1652 (1984)). To determine whether an extended seizure violates the Fourth Amendment, this Court must balance “the government's interests in the seizure against the individual's possessory interest in the object seized.” Pratt, 915 F.3d at 271 (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637 (1983)). In assessing the Government's interests, this Court must consider “whether the police diligently pursue[d] their investigation.” Place, 462 U.S. at 709, 103 S.Ct. 2637; see also United States v. Burgard, 675 F.3d 1029, 1033 (7th Cir. 2012) (explaining that police's failure to offer explanation for delayed pursuit of search warrant reflects indifference and is less likely to be justifiable). To evaluate an individual's possessory interest in the item seized, the Court must consider the suspect's unique circumstances. A suspect who has strongly resisted a search and seizure, and remains free from police custody, maintains an undiminished interest in the item that the Government has seized. See Pratt, 915 F.3d at 271-72. On the other hand, an individual who is incarcerated, and therefore has no access to a seized item, has a significantly diminished possessory interest in that item. See, e.g., United States v. Sullivan, 797 F.3d 623, 633-34 (9th Cir. 2015).

         An individual who is free from police custody maintains a strong possessory interest in a cell phone by objecting to its seizure and refusing to consent to its search. Pratt, 915 F.3d at 271. In Pratt, FBI agents were investigating Sumuel Pratt for running a prostitution ring that included juveniles. Id. at 269. Upon discovering that Pratt had advertised the sexual services of a seventeen-year-old, known as RM, at a hotel, FBI agents arrived at the scene and spoke separately with RM and Pratt. Id. at 269-70. At the scene, Pratt admitted that he had nude pictures of RM on his phone but refused to disclose the phone's passcode or share its contents. Id. at 270. Over Pratt's objections, the FBI seized the phone but did not obtain a search warrant until 31 days later. Id. Throughout this period, Pratt remained free from police custody. See Brief of Pratt, TLW-16-207, 2017 WL 6806325, at *11 (Dec. 27, 2017). The Government's only explanation for the delay was that federal agents could not decide whether to pursue the warrant in North Carolina or South Carolina. Pratt, 915 F.3d at 270.

         Ruling from the bench, the District Court found that the Government's delay was reasonable. Id. At trial, it permitted the introduction of evidence obtained from the cell phone. Id. Based on this evidence, the jury convicted Pratt on a total of eight counts, including two counts related to child pornography. The United States Court of Appeals for the Fourth Circuit determined that the District Court erred by permitting evidence obtained from the cell phone at trial, and vacated the child pornography counts. Id. at 271. Balancing the Government's interest in seizing the phone against Pratt's possessory interest, the Court found that the 31-day delay was unreasonable and the evidence from the phone should have been suppressed. Id. at 272-73. Specifically, the Court reasoned that Pratt's possessory interest in the phone remained undiminished because he refused to consent to its seizure or voluntarily share its contents. Id. at 272. The Government's excuse for its delay-confusion surrounding the appropriate jurisdiction for the warrant-was unavailing and did not outweigh Pratt's possessory interests. Id. at 272-3.

         Pratt was not incarcerated when his cell phone was seized and subsequently searched and was therefore able to claim a strong possessory interest in his cell phone. By contrast, individuals who are incarcerated have significantly diminished possessory interests in their personal effects. See Sullivan, 797 F.3d at 633-34 (holding that “[w]here individuals are incarcerated and cannot make use of seized property, their possessory interest in that property is reduced” (citing Segura v. United States, 468 U.S. 796, 813, 104 S.Ct. 3380 (1984) (Burger, C.J.) (plurality opinion); United States v. Clutter, 674 F.3d 980, 984-85 (8th Cir. 2012)). Numerous district courts have reached this same conclusion. See United States v. Williams, CR418-147, 2019 WL 1612833, at *3 n.4 (S.D. Ga. Feb. 27, 2019) (collecting district court opinions finding that prisoners have diminished possessory interests in personal property), report and recommendation adopted, CR418-147, 2019 WL 1601375 (S.D. Ga. Apr. 15, 2019). Accordingly, the Government is not required to obtain a search warrant as expeditiously as possible when handling the personal effects of prisoners who have been totally deprived of their access to personal property.

         In this case, a balancing of the Government's interest in the seizure against Dorsey's possessory interest in his phone weighs in favor of the Government. Dorsey had a severely diminished property interest in his cell phone at the time that federal agents retrieved it from the Baltimore Police. Dorsey has been incarcerated, save for a brief and unspecified period of release, since August 2016. The Government acquired his cell phone in November 2016 and obtained a search warrant after the holidays, on December 27, 2016. Throughout this time, Dorsey remained in custody and had no control over his phone, which had been in the possession of the Baltimore Police for about a year following his arrest for a handgun violation in December 2015. Although Dorsey was free from custody at some point between the initial seizure of his phone and his August 2016 arrest, he made no effort to regain possession of the phone because, he argues, any such efforts would have been futile in light of on-going criminal proceedings. Dorsey had almost no control over his phone and, by his own admission, had no ability to regain possession of it. He was not so much as inconvenienced by its seizure. Accordingly, his possessory interest in the phone was severely diminished.

         The Government's interest in the seizure outweighs Dorsey's slight possessory interest in the phone. During the Motions Hearing, Special Agent Filbert credibly testified that the FBI and the Office of the United States Attorney had been working diligently since early November 2016 to obtain a search warrant for its contents. Agent Filbert also admitted that he could have drafted an affidavit to support a search warrant application immediately after the FBI acquired the phone and that federal magistrate judges are available 24-hours per day throughout the week to evaluate search warrant applications. These facts, however, do not render the Government's delay “unreasonable.” The evidence suggests that the Government, mindful that Dorsey was incarcerated and had no access to his phone, desired to obtain both the warrant for Dorsey's phone, as well as a warrant to search a building for bullet fragments, at the same time. In so doing, the Government consolidated its investigatory efforts and respected the magistrate's busy schedule. The timeline of events presented in Agent Filbert's testimony and corroborated by emails does not suggest that the Government was “indifferent” to the search or to Dorsey's rights, see Burgard, 675 F.3d at 1033, but rather that it was diligently pursuing an important investigation. See Place, 462 U.S. at 709, 103 S.Ct. 2637. The balancing of the parties' respective interests does not indicate that the Government's delay was unreasonable. Accordingly, suppression is not warranted on this basis.

         Additionally, Dorsey's inaction resulted in the abandonment of his phone. The Fourth Amendment only protects property for which an individual maintains a “subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038 (2001). There is no reasonable expectation of privacy in abandoned property; consequentially, one cannot seek suppression of evidence obtained from abandoned items. United States v. Leshuk, 65 F.3d 1105, 1111 (4th Cir. 1995). To determine whether an item has been abandoned, this Court must consider whether the circumstances suggest that the complaining party has relinquished his reasonable expectation of privacy in the item. United States v. Stevenson, 396 F.3d 538, 546 (4th Cir. 2005). In some cases, an individual's failure to maintain his property relinquishes this expectation and results in abandonment. See United States v. Haynie, 637 F.2d 227, 237 (4th Cir. 1980) (finding that defendant abandoned apartment because his lease had expired for nearly two months and contained no clothing or food and was without telephone service); United States v. Wilson, 472 F.2d 901, 903 (9th Cir. 1973) (finding that defendant had abandoned his apartment, in spite of the fact that he maintained personal property there, because he had departed the residence and was delinquent in rental payments).

         In this case, Dorsey abandoned his phone by failing to contest its seizure or otherwise seek its return. Dorsey admits that he was not detained between December 31, 2015 and August 9, 2016. (ECF No. 95 at 2 n.1.) During this period, he could have, but did not, petition for the return of his phone. Dorsey's complete disregard for his phone and disinterest in pursuing its return, like the Defendants' disregard for their apartments in the Haynie and Wilson cases, results in abandonment. Dorsey's explanations for his inaction are unpersuasive.[5] He complains that he had “virtually no time” to petition for the return of his phone. He admits, however, that he was out of custody for several months. This afforded him enough time to request its return. Dorsey also maintains that any efforts to regain his phone would have been futile, but elsewhere argues (without elaboration) that state authorities had retained it “unlawfully.” (ECF No. 95 at 4 n.3.) If this were so, then he could have raised meritorious arguments in pursuit of the phone's return. Dorsey did not raise these arguments, however. Instead, he allowed ...


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