Warrant Sufficient to Search SD Cards & Phone Based on Evidence of Drug Trafficking

US v. Orozco: Orozco was pulled over for traffic violations. He had a smartphone in his lap running a GPS navigation app but, when asked where he was going, hastily closed the app and could not answer the question. Officers also noticed that Orozco was nervous and that the dashboard of the car “was no flush and bore toolmarks, suggesting someone previously pried it open.” Orozco eventually consented to a search, which uncovered more than $100,000 in cash in a secret compartment in the dashboard, which Orozco said did not belong to him. Orozco was arrested for the traffic violations and taken to the police station. There, during a search of his person, an officer “found a folded-up $100 bill in Orozco’s shoe, and as he unfolded it, five micro-SD cards fell out onto the floor” at which point Orozco “quickly scooped up two of the cards and shoved them into his mouth.” One was recovered, although “chewed and inoperable,” while the other was swallowed. Officers got warrants to search the remaining SD cards and the phone, eventually leading to the discovery of child pornography. Orozco was ultimately charged with possession of child pornography, unsuccessfully moved to suppress the images found on the SD cards and phone, found guilty, and was sentenced to 144 months in prison.

On appeal, the Fourth Circuit affirmed Orozco’s conviction. Orozco reiterated his argument that the evidence found on the SD cards and the phone should have been suppressed because the warrant used to search them was not sufficient. He first argued that the warrant did not sufficiently show that he was engaged in drug trafficking. The court disagreed, agreeing that while “cash is not contraband,” the fact that it was a large amount of money and was stored in a hidden compartment made “those innocent explanations seem unlikely.” In any event, the other facts showed that “the totality of these circumstances is more than enough to establish a ‘fair probability’ that Orozco was engaged in drug trafficking.” Second, Orozco argued that there was no basis for concluding that evidence of drug trafficking would be found on the SD cards and phone. As to the cards, the court concluded that Orozco’s attempted destruction of them when discovered “can be taken only as an attempt to hide something” and that “intentionally destroying an item before it can be examined would permit someone to believe the item is inculpatory.” As to the phone, the fact that Orozco was using the phone for navigation while transporting the money was “enough, without even considering Orozco’s attempt to destroy other electronic evidence,” to provide reason to believe there would be drug-related evidence on the phone.

No Standing to Challenge Search of Rental Car Without Assertion of Such

US v. Daniels: Officers were searching for Daniels, who had multiple outstanding arrest warrants. They saw him driving a grey Dodge with Florida tags, which a check revealed was a rental car. The next morning, they tracked Daniels to a hotel where the Dodge was parked out front. After arresting Daniels in his room, they walked past the Dodge and asked Daniels about it, who responded that he “didn’t know anything about” a Dodge. An officer called the rental company, who confirmed that the Dodge was rented by someone else and Daniels was not an authorized driver. As a result, they had the car towed to one of their facilities, where employees consented to a search of the car. The search uncovered a firearm that DNA linked to Daniels. He was charged with being a felon in possession of a firearm and unsuccessfully moved to suppress the gun. He entered a conditional guilty plea to preserve the issue for appeal.

On appeal, the Fourth Circuit affirmed the denial of Daniels’ motion to suppress. The court held that Daniels lacked “standing,” the reasonable expectation of privacy necessary to assert Fourth Amendment rights, in the Dodge. The court noted that the defendant in such situations bore the burden of proof in establishing standing and in the wake of the Supreme Court’s decision in Byrd “Daniels had the burden of producing evidence that he had possession and that his possession was lawful.” It was not enough that counsel argued that the renter allowed Daniels to drive the car, “Daniels did not produce any evidence at the suppression hearing to support that claim – not even a statement of his own to suggest that he had permission.” Counsel’s “unsupported claim is not evidence” and therefore not sufficient to prove standing.

Court Adopts Narrow Definition of Violence Against Property for Crime of Violence Determination

US v. Melaku: In 2012, Melaku pleaded guilty to three counts, including willfully injuring government property causing damage exceeding $1000 and discharging a firearm during a crime of violence – the injuring property offense. Melaku has fired shots at several government buildings in Northern Virginia “to oppose American military efforts in Iraq and Afghanistan.” In 2016, after the Supreme Court’s decision in Johnson, Melaku filed a 2255 motion arguing that the injuring property conviction was not a “crime of violence” – defined here as including the use of force “against the person or property of another” – and therefore the firearm conviction could not stand. The district court denied the motion, holding that the injuring property statute was divisible and the version of the offense Melaku pleaded guilty to constituted a crime of violence.

On appeal a divided Fourth Circuit reversed. The court first concluded that the statute at issue was, in fact, indivisible in that it “defines a single felony offense.” That it includes “willfully injury or committing depredation” against property did not mean it defined two offenses, but alternative means of commission. Those terms are “not so dissimilar as to establish distinct crimes.” Moreover the “least culpable means” of committing that offense (as required under the categorical approach) did not require the type of force necessary to be a “crime of violence.” Distinguishing robberies, “which are violent crimes involving the intimidation of a person, crimes against property do not require such personal intimidation and can be committed outside the presence of others.” Spray painting government property, for example, would fall under the statute (if it caused enough damage) but not involve violence.