Improper Remarks from Prosecution During Closing Argument Were Not Prejudicial

US v. Martinez-Chavez: Martinez-Chavez was the sole occupant of a vehicle stopped by police, who recovered a rifle, revolver, and ammunition from the vehicle. Martinez-Chavez was charged with being a felon in possession of a firearm and possession of a short-barreled rifle. Martinez-Chavez denied any knowledge of the firearms and, at trial, presented testimony from a witness whom he was giving a ride home but who had Martinez-Chavez drop him off when the police pursuit started because he was carrying crack cocaine (the officer lost sight of the vehicle briefly). However, that “story collapsed on the stand,” leading defense counsel to admit the witness was “clearly addled by the drugs that he smokes.” During closing argument, the Government called the witness a “liar” and argued that the case was not just important to the Martinez-Chavez, but to law enforcement “who are out there protecting the community.” Martinez-Chavez was convicted on all counts and sentenced to 59 months in prison.

On appeal, the Fourth Circuit affirmed Martinez-Chavez’s convictions. On the closing argument, the Government did not argue that the law enforcement comment (to which Martinez-Chavez objected) was proper, but that it was harmless. The court agreed, noting that the possibility of misleading the jury was “slight,” that any improper bolstering was offset by the district court’s cautionary instruction, and that the evidence against Martinez-Chavez was strong. The liar remark (to which Martinez-Chavez did not object) was erroneous and plain, but Martinez-Chavez could not show it impacted his substantial rights. The court also rejected Martinez-Chavez’s argument that he should have received an adverse inference instruction based on the failure to preserve body or dash cam footage, noting that he did not allege bad faith and otherwise could not show that the Government should have known the evidence was relevant and needed to be preserved.

Co-Defendant’s Improper Closing Argument Didn’t Deny Other Defendants Fair Trial

US v. Arias: Arias, Gutierrez, and Villatoro were MS-13 members charged with (among other things) racketeering, murder, and witness tampering. They went to trial together, where Villatoro, during closing argument, explained why he did not take the stand and why “it’s best to let counsel speak for Villatoro as best she can to tell his story.” Counsel also argued that the Government witnesses testified truthfully about the two murders involved with regards to his codefendants, but not him. The Government began to object, but the district court instructed it not to. Arias objected when the argument was over, arguing that Villatoro’s arguement suggested Arias had no reason not to testify. The district court denied a motion for a mistrial or to sever and provided a cautionary instruction to the jury, to which Villatoro objected, as it instructed the jury to disregard his entire argument. All three defendants were convicted (although not on all charges).

On appeal, the Fourth Circuit affirmed the defendants’ convictions. As to Arias and Guitierrez, the court held that the district court did not abuse its discretion by failing to sever their cases from Villatoro’s or declare a mistrial. The court concluded that any prejudice they might have suffered had been cured by the district court’s instruction. The court noted that it presumes jurors follow instructions and would not extend Bruton beyond its facts. As to Villatoro, however, the court held that the district court had abused its discretion by striking all of his closing argument, rather than just the objectionable parts.

Use of Cell-Site Simulator is Fourth Amendment Search, Requires Warrant

Andrews v. Baltimore City Police Department: Andrews was a suspect in a Baltimore-area shooting. Police tracked him down to a particular neighborhood, but didn’t know which home he was in. After getting a PEN register and historical cell-site data for his phone, and still unable to find Andrews, police used a cell-site simulator called Hailstorm to connect to Andrews’ cell phone and pinpoint his location. Andrews was arrested, the home was searched, and a firearm recovered. Charged in state court, Andrews successfully moved to suppress the firearm and the charges were eventually dropped. Andrews filed a 1983 civil suit alleging that the Baltimore Police Department (among others) had violated his Fourth Amendment rights. The district court granted the defendants’ motion for summary judgment, concluding both that the use of the simulator did not violate the Fourth Amendment and, even if it did, qualified and official immunity would apply.

A divided Fourth Circuit ultimately affirmed the grant of the summary judgment motion. In doing so, however, it first concluded that the use of the cell-site simulator did constitute a search under the Fourth Amendment and police should have gotten a warrant. Relying on Carpenter and Chatrie, the court concluded that Andrews had a reasonable expectation of privacy in the real-time location of his cell phone and that technology “that briefly seizes the cellphone’s signals” was a search. While the use of a cell-cite simulator does not have the scope of other procedures addressed by the Supreme Court, it “implicates similar privacy concerns” and, in this case, involved penetrating the home as part of the search. Nonetheless, the court concluded that qualified immunity and official immunity (under Maryland law) applied, noting that it was the first court to even resolve the issue of whether the use of a simulator is a search.

Judge Quattlebaum concurred in the judgment, but took issue with the majority’s conclusion that a warrantless search had occurred.

Reasonalbe Suspicion of Possible Child Kidnapping Provided Basis to Enter Home Where Stop Began on Front Porch

Hayat v. Diaz: Maryland police got a “priority” 911 call about a possible kidnapping, in which someone saw a man yelling at children while ordering them into the trunk of a vehicle. The witness provided the license number and officers tracked the vehicle (a Tesla which has rear-facing “jump” seats in the trunk area) to Hayat. They arrived at Hayat’s home, where he and his wife were on the porch. After some questions about a kidnapping, Hayat tried to retreat inside, insisting the police had no basis to enter the home without a warrant. Police prevented Hayat from closing the door, forced their way in, and investigated.

There was no kidnapping.

Hayat sued the police, arguing they had violated his Fourth Amendment rights. The district court granted the officers’ motion to dismiss, concluding that they had reasonable suspicion of a kidnapping and otherwise acted properly under the Fourth Amendment.

On appeal, a divided Fourth Circuit affirmed the dismissal. First, the court concluded that the officers had reasonable suspicion to believe a kidnapping had taken place, based not only on the initial report, but by follow-up interviews with the original witness (a different person had called 911) and Hayat’s conduct when they arrived, which was deflective and suspicious. Second,  Second, the court concluded that what occurred on the porch was a Terry stop, becoming such when Hayat tried to retreat into his home and he was ordered not to. Third, the court held that the officers were justified by continuing into Hayat’s home, given the exigent circumstances that were present.

Judge Berner dissented, arguing that the initial encounter was consensual (which Hayat had the right to terminate) and that the majority erred by “creating a rules that an incomplete Terry stop is enough to permit police officers to enter an individual’s home” in “blatant conflict with minimum protections of the Fourth Amendment.”