Petition for Writ of Certiorari — Danny Ray Williams, Petitioner v. United States

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

February 12, 2021

No. 20-50325

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opinion should not be published and is not precedent except under the limited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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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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