US v. Lyndon Miller

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to amend/correct [999769611-2], denying Motion to amend/correct [999725283-2]; denying Motion to file supplemental brief(s) [999760181-2]; denying Motion to file informal brief [999716910-2], denying Motion to file informal brief [999706345-2] Originating case number: 1:13-cr-00342-MJG-1 Copies to all parties and the district court/agency. [999771485].. [15-4158]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4158

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LYNDON FACISCO MILLER,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Marvin J. Garbis, Senior District
Judge. (1:13-cr-00342-MJG-1)

Submitted:

February 29, 2016

Decided:

March 10, 2016

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael D. Montemarano, MICHAEL D. MONTEMARANO, PA, Columbia,
Maryland, for Appellant.
Rod J. Rosenstein, United States
Attorney,
Christopher
J.
Romano,
Assistant
United
States
Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A jury convicted Lyndon Facisco Miller of (1) conspiracy to
distribute and possess with intent to distribute 1 kilogram or
more of heroin, 500 grams or more of cocaine, and 28 grams or
more of cocaine base, in violation of 21 U.S.C. § 846 (2012);
(2) possession with intent to distribute 100 grams or more of
heroin, 500 grams or more of cocaine, and 28 grams or more of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2012), 18
U.S.C. § 2 (2012); (3) two counts of distribution of a substance
containing a detectable amount of heroin, in violation of 21
U.S.C. § 841(a)(1), 18 U.S.C. § 2; (4) distribution of 100 grams
or more of heroin, in violation of 21 U.S.C. § 841(a)(1), 18
U.S.C.

§ 2;

and

(5)

felon

in

possession

violation of 18 U.S.C. § 922(g)(1) (2012).

of

a

firearm,

in

On appeal, Miller

challenges the district court’s denial of three of his motions
to suppress evidence under the Fourth Amendment and the court’s
determination that he knowingly, voluntarily, and intelligently
asserted his right to represent himself at trial. 1

1

We affirm.

Miller has filed three motions to file pro se supplemental
briefs and motions to amend supplemental briefs. Because Miller
is represented by counsel who filed a merits brief, we deny his
motions.
See United States v. Penniegraft, 641 F.3d 566, 569
n.1 (4th Cir. 2011) (denying motion to file pro se supplemental
brief because appellant was represented by counsel and appeal
was not submitted pursuant to Anders v. California, 386 U.S. 738
(1967)).

2

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I
When considering the denial of a suppression motion, we
review de novo the district court’s legal conclusions and review
its factual findings for clear error.
Ortiz,

660

F.3d

757,

762

(4th

United States v. Guijon-

Cir.

2011).

Because

the

Government prevailed on the suppression issue below, we construe
the

evidence

in

the

light

most

favorable

to

the

Government.

United States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004).
First, Miller challenges the district court’s denial of his
motion to suppress telephonic and electronic evidence recovered
from the wiretapping of several phone lines he allegedly used.
In denying Miller’s motion, the district court determined that
the warrant application was supported by probable cause, that
the level of particularization in the warrant was reasonable
given one of the issuing judge’s weekly supervision over the
investigation, and that officers acted in good-faith reliance on
the warrant.

On appeal, Miller does not present an argument

regarding the district court’s conclusion that officers relied
in good faith on the state judge’s issuance of the warrant.
Accordingly, Miller has waived appellate review of the district
court’s

denial

of

his

motion

to

suppress

telephonic

electronic evidence pursuant to wiretap warrants.

and

See United

States v. Bartko, 728 F.3d 327, 335 (4th Cir. 2013) (holding
appellant’s failure to include “‘contentions and the reasons for
3

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them, with citations to the authorities . . . on which the
appellant relies’” in opening brief results in waiver of issue
(quoting Fed. R. App. P. 28(a)(8)); see also United States v.
Bynum,

293

F.3d

192,

194

(4th

Cir.

2002)

(where

defendant

challenges probable cause supporting warrant and officer’s goodfaith reliance on warrant, court may skip directly to good-faith
analysis

as

finding

of

good

faith

is

sufficient

to

reject

exclusion of evidence).
Second, Miller challenges the district court’s denial of
his

motion

to

suppress

tracking

evidence

recovered

from

the

attachment of Global Positioning Systems (GPS) devices to rental
vehicles operated by Miller.

The district court denied Miller’s

motion, concluding that a reasonable construction of the warrant
permitted
Miller

attachment

used

Government
tracking

and

of

that

represented
evidence

from

vehicles used by Miller.
the

district

court’s

GPS
the

devices
motion

to

all

appeared

that

it

did

not

any

GPS

devices

waived

appellate

moot

intend
attached

vehicles

where
to

the

present

to

rental

On appeal, Miller does not challenge

holding

that

the

motion

result of the Government’s representation.
has

rental

review

of

4

the

denial

was

moot

as

a

Accordingly, Miller
of

his

motion

to

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suppress tracking evidence recovered from the GPS searches. 2

See

Bartko, 728 F.3d at 335.
Third,

relying

on

Riley

v.

California,

134

S.

Ct.

2473

(2014), Miller challenges the district court’s denial of his
motion

to

recovered
2013.

suppress
and

The

evidence

activated

district

recovered

from

contemporaneously

court

denied

the

six

with
motion

cell

his

phones

arrest

because

in

then-

existent law permitted the search.
The

exclusionary

rule

prohibits

introducing

“evidence

obtained in violation of a defendant’s Fourth Amendment rights,
but the sole purpose of the rule is to deter future Fourth
Amendment

violations,

and

its

application

properly

has

been

restricted to those situations in which its remedial purpose is
effectively advanced.”
335

(4th

Cir.

2014)

United States v. Stephens, 764 F.3d 327,
(citations

2

and

internal

quotation

marks

Even if the issue was not waived, we would conclude that a
reasonable construction of the warrant application and order
permitted officers to attach GPS devices to future cars Miller
rented and not just to the specific rental vehicles identified
in the warrant application as vehicles Miller rented in the
past. See United States v. Ventresca, 380 U.S. 102, 108 (1965)
(“[A]ffidavits for search warrants . . . must be tested and
interpreted by magistrates and courts in a commonsense and
realistic fashion.”).
Any alternative interpretation of the
warrant would have defeated issuance of the warrant because
neither the attesting officers nor the issuing judge possessed
any ability to anticipate what specific rental car the rental
car companies Miller frequented might assign Miller in the
future.

5

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omitted),

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cert.

denied,

136

Pg: 6 of 8

S.

Ct.

43

(2015).

“[W]hen

the

police act with an objectively reasonable good-faith belief that
their conduct is lawful, . . . the deterrence rationale loses
much of its force, and exclusion cannot pay its way.”
United States, 564 U.S. 229,

Davis v.

, 131 S. Ct. 2419, 2427-28

(2011) (citations and internal quotation marks omitted).
result,

the

exclusionary

rule

does

not

apply

to

As a

searches

conducted in accordance with then-binding appellate precedent,
even if that precedent is later overruled.

Id. at 2423-24.

Here, Riley was decided over a year after the search Miller
challenges.

At the time of the search, both the law of this

Circuit and Maryland law permitted a warrantless search of a
cell phone in the course of an inventory search incident to
arrest.

See United States v. Murphy, 552 F.3d 405, 411-12 (4th

Cir. 2009) (“The need for the preservation of evidence justifies
the retrieval of call records and text messages from a cell
phone or pager without a warrant during a search incident to
arrest.”);

Sinclair

v.

State,

76

A.3d

442,

454

(Md.

2013)

(positively citing Murphy and holding “limited and immediate”
warrantless search of cell phone is “valid search incident to
arrest”).

Accordingly,

pursuant

to

the

rule

established

in

Davis, the district court properly denied Miller’s motion to
suppress evidence collected as a result of the activation of his
cell phones.
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II
The
right

Sixth

to

Amendment

counsel,

and,

guarantees
if

criminal

indigent,

the

defendants

right

to

the

appointed

counsel.

Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963).

The

Amendment’s

Sixth

implies

the

California,

right
422

U.S.

guarantee
of

of

counsel

also

self-representation.”

806,

832

(1975).

The

“necessarily
Faretta

right

to

v.

self-

representation “must be preserved even if the court believes
that the defendant will benefit from the advice of counsel.”
United States v. Singleton, 107 F.3d 1091, 1095–96 (4th Cir.
1997).

We review de novo the determination that Miller waived

his right to counsel.

Id. at 1097 n.3.

A defendant who asserts the right of self-representation
must

do

so

(1)

clearly

and

unequivocally;

(2)

knowingly,

intelligently, and voluntarily; and (3) in a timely fashion.
United States v. Frazier–El, 204 F.3d 553, 558 (4th Cir. 2000).
“The requirement that the assertion be clear and unequivocal is
necessary to protect against an inadvertent waiver of the right
to counsel by a defendant’s occasional musings” and “prevents a
defendant from taking advantage of and manipulating the mutual
exclusivity of the rights to counsel and self-representation.”
United

States

v.

Bush,

404

F.3d

(internal quotation marks omitted).

263,

271

(4th

Cir.

2005)

A defendant “should be made

aware of the dangers and disadvantages of self-representation,
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so that the record will establish that he knows what he is doing
and his choice is made with eyes open.”

Faretta, 422 U.S. at

835 (internal quotation marks omitted).
In granting the motion, the district court (1) assured that
Miller

was

mentally

(2) questioned

existing

competent
counsel

to

represent

regarding

Miller’s

himself;
ability

to

comprehend and speak English; (3) advised Miller several times
regarding

the

advantages

of

proceeding

with

counsel;

(4) discussed with Miller the option of having stand-by counsel
and how stand-by counsel could assist him; and (5) confirmed
that

Miller

understood

the

charges

he

was

facing.

Miller

repeatedly expressed a desire to represent himself with stand-by
counsel to assist him with the procedural aspects of a trial,
and the district court appointed the stand-by counsel Miller
requested.

Accordingly, we conclude that the district court

engaged

the

in

voluntarily,

required

and

inquiry

intelligently

and

that

asserted

his

Miller
right

knowingly,
to

self-

representation.
Therefore, we affirm the district court’s judgment.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED
8