United States v. Williams

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

                                  No. 20-50325                      February 12, 2021
                                Summary Calendar                      Lyle W. Cayce

   United States of America,



   Danny Ray Williams,


                  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   opinion should not be published and is not precedent except under the limited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.
Case: 20-50325        Document: 00515743139        Page: 2   Date Filed: 02/12/2021

                                    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

Case: 20-50325      Document: 00515743139            Page: 3    Date Filed: 02/12/2021

                                      No. 20-50325

   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.

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.

597 F.3d 763

, 767 (5th Cir. 2010) (quoting United States v.

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

   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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                                      No. 20-50325

          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

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

          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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                                  No. 20-50325

   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


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