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4^th U.S. Circuit Court of Appeals

Criminal Procedure; Search & seizure: Judgment of the district court convicting defendant of child pornography, among other things, vacated because, where police seized defendant’s cell phone and did not obtain a warrant until 31 days later, delay constituted an unreasonable extended seizure. United States of America v. Samuel Pratt, No. 17-4489.

Real Property; Zoning for religious land use: Judgement of the district court, which affirmed Baltimore County‘s dismissal of church’s petition for approval to use purchased land as a church, vacated because, where church’s efforts to meet zoning conditions were frustrated by County’s failure to properly review petition, church sufficiently alleged that dismissal of petition violated the Religious Land Use and Institutionalized Persons Act by imposing a substantial burden on their religious practice. Jesus Christ is the Answer Ministries, Inc., et al. v. Baltimore County, Maryland, et al., No. 18-1450.

Criminal Procedure

Search & seizure

BOTTOM LINE: Judgment of the district court convicting defendant of child pornography, among other things, vacated because, where police seized defendant’s cell phone and did not obtain a warrant until 31 days later, delay constituted an unreasonable extended seizure.

CASE: United States of America v. Samuel Pratt, No. 17-4489 (decided Feb. 8, 2019) (Judges Motz, Agee & DIAZ).

COUNSEL: David Bruce Betts, Law Offices of David B. Betts, Columbia, SC, for Appellant. James Hunter May, Office of the United States Attorney, Columbia, SC, for Appellee.

FACTS: FBI agents in the Carolinas investigated Samuel Pratt for running a prostitution ring that included juveniles. The agents found a post on Backpage.com in which Pratt advertised the sexual services of seventeen-year-old “RM” at a hotel in Columbia, South Carolina. An agent scheduled a “date” with RM at the hotel for February 3, 2016. When the agent entered the hotel room, he identified himself to RM as law enforcement. She agreed to speak with several agents. RM told them she was seventeen and working as a prostitute at the hotel. She said her “boyfriend” Pratt brought her across state lines from North Carolina. Responding to an agent’s question, she said she had texted nude photographs of herself to Pratt’s phone. RM allowed FBI agents to take her cellphone.

At the same time, two FBI agents spoke to Pratt in the hotel parking lot. Agent Stansbury, who had spoken with RM, joined them. Stansbury confronted Pratt, who was holding an iPhone. Pratt told Stansbury the phone was his. Stansbury asked if Pratt had nude photos of RM on the phone. Pratt responded “yes, I’ve got pictures of her on the phone.”

Stansbury then seized the phone, telling Pratt the FBI would get a search warrant. Pratt refused to consent to the seizure or disclose the phone’s passcode. And the FBI didn’t get a warrant to search the phone until March 4, 2016—a full 31 days after seizing it. When agents finally searched the phone, they found nude images of RM and incriminating text conversations with RM and others.

Soon after, a federal grand jury indicted Pratt. At Pratt’s initial appearance, the magistrate judge ordered him to have no contact with anyone who is a witness, or may be a witness, or a victim. Despite that order, Pratt repeatedly called his mother from prison to coordinate continued prostitution operations. In several calls, he had his mother put RM on the phone. He repeatedly told RM not to testify or cooperate.

Before trial, Pratt moved to suppress evidence from his phone. In his written pleadings, Pratt only contended that the seizure of the phone was unconstitutional. But at the suppression hearing, he also argued that the delay between the seizure and obtaining the search warrant was unconstitutional. The government explained that the delay came from the need to decide whether to seek a warrant in North Carolina or South Carolina. Ruling from the bench, the district court denied the suppression motion, finding the seizure justified and the delay reasonable.

The government tried to get RM to testify. Several months after Pratt’s calls from jail, the FBI served her with a subpoena. When agents later spoke to her, she refused to testify. The FBI obtained a material witness warrant for her, but the U.S. Marshals couldn’t find her. Several other women would testify at trial that Pratt would beat any prostitute—including RM—whom he considered disobedient.

With RM unavailable, the government sought to introduce her statements to FBI agents about the prostitution ring and about the nude images she sent Pratt. The district court overruled Pratt’s hearsay and confrontation objections, ruling that Pratt forfeited those objections by intimidating RM into refusing to testify. An agent then recounted RM’s statements. In addition, the government introduced evidence from Pratt’s cellphone. That evidence included 28 images alleged to be child pornography, metadata for the images, text message conversations, and advertisements Pratt placed for prostitution. The government also introduced an “extraction report” on data from RM’s phone. It included text messages but didn’t include photos or videos.

The jury convicted Pratt on all eight counts. The district court imposed life sentences on four counts and concurrent time on the other four.

Pratt appealed the denial of his suppression motion and the admission of RM’s prior statements to the 4th Circuit, which vacated the convictions on the two child pornography counts, affirmed his other six convictions, vacated his sentence, and remanded to the district court.

LAW: The constitutional question was whether the extended seizure of Pratt’s phone was reasonable. A seizure that is “lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests.” United States v. Jacobsen, 466 U.S. 109, 124 (1984) (citing United States v. Place, 462 U.S. 696 (1983)). To determine if an extended seizure violates the Fourth Amendment, we balance the government’s interest in the seizure against the individual’s possessory interest in the object seized. See Place, 462 U.S. at 703; United States v. Van Leeuwen, 397 U.S. 249, 252–53 (1970).

A strong government interest can justify an extended seizure. See, e.g., Illinois v. McArthur, 531 U.S. 326, 332–33 (2001) (suspect prevented from entering home for two hours while officers obtained a warrant); United States v. Montoya de Hernandez, 473 U.S. 531, 541–44 (1985) (suspected alimentary canal smuggler detained for 16 hours). But if the individual’s interest outweighs that of the government, an extended seizure may be unreasonable. See Rodriguez v. United States, 135 S. Ct. 1609, 1615–16 (2015) (traffic stop extended for dog sniff without reasonable suspicion). An individual diminishes his interest if he consents to the seizure or voluntarily shares the seized object’s contents. See, e.g., United States v. Christie, 717 F.3d 1156, 1162–63 (10th Cir. 2013).

Here, Pratt didn’t diminish his possessory interest in the phone. He didn’t consent to its seizure or voluntarily share the phone’s contents. The government’s only explanation for the 31-day delay in obtaining a warrant was that Pratt committed crimes in both North Carolina and South Carolina and agents had to decide where to seek a warrant. This explanation was insufficient to justify the extended seizure of Pratt’s phone.

Pratt’s case was similar to United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009). There, an agent seized a computer but failed to obtain a search warrant for 21 days. The agent explained that he left town for a lengthy training and didn’t think the warrant was urgent. The Eleventh Circuit considered the seizure unreasonable because the agent could have applied for a warrant before he left or passed the case to someone else. But the court cautioned that overwhelmed police resources or other “overriding circumstances” could justify extended delays. Id. at 1353.

Pratt’s case was similar to Mitchell because the government had no persuasive justification for the delay in obtaining a search warrant for Pratt’s phone. Simply put, the agents here failed to exercise diligence by spending a whole month debating where to get a warrant. See United States v. Burgard, 675 F.3d 1029, 1033–34 (7th Cir. 2012) (describing diligence as an important factor). That decision shouldn’t have taken a month. It was unlikely that the forum for a warrant would affect a later prosecution: a point the government conceded at oral argument.

It was held, therefore, that the delay in obtaining a search warrant was unreasonable. The district court therefore erred in denying Pratt’s motion to suppress. Accordingly, the convictions on the two child pornography counts were vacated.

Real Property

Zoning for religious land use

BOTTOM LINE: Judgment of the district court, which affirmed Baltimore County’s dismissal of church’s petition for approval to use purchased land as a church, vacated because, where church’s efforts to meet zoning conditions were frustrated by County’s failure to properly review petition, church sufficiently alleged that dismissal of petition violated the Religious Land Use and Institutionalized Persons Act by imposing a substantial burden on their religious practice.

CASE: Jesus Christ is the Answer Ministries, Inc., et al. v. Baltimore County, Maryland, et al., No. 18-1450 (decided Feb. 7, 2019) (Judges Niemeyer, Agee & DIAZ).

COUNSEL: Roman P. Storzer, Storzer & Associates, P.C., Washington, for Appellants. James Joseph Nolan, Jr., Paul M. Mayhew, Baltimore County Office of Law, Towson, MD, for Appellees.

FACTS: Jesus Christ is the Answer Ministries, Inc., a nondenominational Christian church founded in Baltimore in 1997 by Reverend Lucy Ware, describes itself as evangelical and multicultural. The Church’s struggles to secure an adequate house of worship has impeded its religious mission. This lawsuit arose from Ware’s unsuccessful efforts to obtain County approval to operate a church on property that she purchased for that purpose in 2012 (the “Property”).

The Property consists of 1.2 acres of land with a building previously used as a dwelling. It is zoned under the Baltimore County Zoning Regulations (“BCZR”) as “Density Residential 3.5.” In this zone, churches are permitted as of right subject to certain conditions, including that parking lots and structures are (1) set back 75 feet from tract boundaries, and (2) separated from adjacent lots by a 50-foot landscaped buffer. These conditions, however, do not apply to new churches whose site plans have been approved after a public hearing finding that compliance with the conditions will be maintained “to the extent possible,” and that the plan “can otherwise be expected to be compatible with the character and general welfare of the surrounding residential premises.” Id. §1B01.1.B.1.g.(6).

Before Ware purchased the Property, her realtor advised her that a church was a permitted use on the Property. After buying the Property, Ware made improvements to the building and parking lot and held a church service and cookout. Neighbors complained to the County, and a County inspector notified Ware that she could not use the Property as a church unless she complied with applicable zoning requirements.

Ware filed a petition with the County to approve use of the Property as a church. The petition proposed a buffer and setback of zero feet, seeking complete relief from the zoning requirements. It also sought variances from parking requirements. The County Director of the Department of Planning did not oppose the petition, provided a landscape plan were submitted to the department for approval.

A hearing was held before an Administrative Law Judge (“ALJ”). Neighbors who opposed the petition displayed open hostility to Ware and the Church. Their comments included: (1) “dancing and hollering like they back at their home back in Africa somewhere”; and (2) “[s]he can come over here from Africa…branch out from another church and put all of this in our neighborhood.” Since the hearing, neighbors have subjected the Church and its members to sustained harassment, including racial slurs. The Property has also been subject to vandalism and theft.

The ALJ recommended denying Ware’s petition. Ware appealed this recommendation to the Board of Appeals. The Board denied the petition, finding that the Church did not even minimally comply with the applicable zoning requirements and that the plan would not be compatible with the character or general welfare of the surrounding homes which homes were occupied by the neighbors who testified. The Board’s decision was affirmed by the Circuit Court for Baltimore County and the Court of Special Appeals of Maryland. Ware v. People’s Counsel, 117 A.3d 628 (2015).

While the first petition was pending appeal, Ware filed a second petition. This new petition included a modified site plan that (1) moved the parking lot to increase the setback to 55 feet and the buffer to 50 feet, and (2) did not seek any parking variances. The new petition also differed from its predecessor in that it sought approval not only under the zoning provision governing new churches, but also under a separate provision governing existing churches.

The People’s Counsel (a county official) initially sought dismissal of the new petition, on the ground that it sought essentially the same relief as its predecessor. The neighbors who opposed the first petition adopted the People’s Counsel’s motion to dismiss. But the People’s Counsel subsequently withdrew his motion based on the differences between the two petitions. Nevertheless, the neighbors continued to pursue dismissal. The Board granted the motion to dismiss, holding that the new petition was barred by res judicata and collateral estoppel.

Ware and the Church then filed suit in federal district court, alleging, inter alia, that the Board’s dismissal of the second petition violated the Religious Land Use and Institutionalized Persons Act. The district court dismissed the complaint for failure to state a claim.

The Church appealed to the 4th Circuit, which vacated the judgment of the district court and remanded the case.

LAW: The Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §2000cc et seq. prohibits land use regulations that impose a “substantial burden” on religious practice, unless they are the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. §2000cc(a)(1). A substantial burden exists where a regulation “puts substantial pressure on [the plaintiff] to modify its behavior.” Bethel World Outreach Ministries v. Montgomery Cty. Council, 706 F.3d 548, 556 (4th Cir. 2013).

As relevant here, land use regulations can substantially burden religious exercise where an organization acquires property expecting to use it for a religious purpose but is prevented from doing so by the application of a zoning ordinance. In such a case, two questions are usually relevant to determining whether RLUIPA has been violated. First, is the impediment to the organization’s religious practice substantial? The answer will usually be “yes” where use of the property would serve an unmet religious need, the restriction on religious use is absolute rather than conditional, and the organization must acquire a different property as a result. See Bethel, 706 F.3d at 557– 58.

Second, who is responsible for the impediment—the government, or the religious organization? In answering this question, we have considered whether the organization had a “reasonable expectation” of religious land use, see Bethel, 706 F.3d at 558, and whether the burden faced by the organization is “self-imposed,” see Andon, LLC v. City of Newport News, 813 F.3d 510, 515 (4th Cir. 2016).

In this case there was little dispute that the impediment is substantial, since the Church was barred from using the Property, so the district court sensibly focused on the second question: Are Plaintiffs responsible for their present inability to use the Property as a church? But in addressing this question, the court wrongly emphasized Plaintiffs’ purported “failure to exercise due diligence before acquiring and altering the property” and their “subsequent proposal [in Ware’s first petition] of a site plan that disregarded the zoning requirements.” Jesus Christ Is the Answer Ministries, Inc. v. Baltimore County, 303 F. Supp. 3d 378, 396 (D. Md. 2018). The first of these supposed failings is irrelevant to whether the zoning regulations in fact authorize Plaintiffs to use the Property as a church. And the second is irrelevant to whether Plaintiffs were responsible for the dismissal of Ware’s second petition, which is what now stands in the way of their religious practice.

Ware sufficiently alleged that she had a reasonable expectation of using the Property as a church. Her realtor told her that such a use was permitted on the Property. This advice was of course correct because churches are “permitted as of right,” provided that their site plans comply “to the extent possible with [applicable] requirements” and can “otherwise be expected to be compatible with the character and general welfare of the surrounding residential premises.” BCZR §§1B01.1.A.3, 1B01.1.B.1.g.(6). Ware was justified in believing that she could satisfy these broadly and permissibly phrased conditions, especially given that the zoning regulations permit churches as of right.

Ware’s efforts to meet the zoning conditions were frustrated, however, when the Board dismissed her second petition. As the district court recognized, the second petition was based on a site plan that substantially differed from and attempted to address the shortcomings of its predecessor. The Board failed to recognize these differences when it dismissed the petition based on res judicata and collateral estoppel, relying on the faulty premise that the two petitions sought essentially the same relief.

The district court declined to dismiss Plaintiffs’ suit on grounds of res judicata and collateral estoppel, but nonetheless determined that the Board correctly dismissed the second petition on these grounds. The court explained this anomaly by noting that Ware advanced different bases for distinguishing the two petitions before the Board and the district court. Specifically, the Board took the “real thrust” of Ware’s argument to be that the second petition invoked a different subsection of the zoning regulations than the first. Before the district court, however, Plaintiffs emphasized the differences between the site plans accompanying the two petitions.

The district court’s reasoning was not persuasive. First, Ware did highlight the differences between the site plans in the administrative proceedings. It was the Board (not Ware) that decided the “real thrust” of Ware’s argument was the different zoning provisions invoked by the two petitions. Second, and more importantly, the two site plans are in fact markedly different. The second plan addressed the first one’s main deficiencies by moving the parking lot to the center of the Property. This increased the landscaped buffer from zero to 50 feet, which fully complied with the buffer requirements. The second plan also increased the parking lot’s setback from zero to 55 feet, which complied to a much greater extent with the 75-foot setback requirement. In light of these substantial changes and improvements, we cannot say that the dismissal of Ware’s second petition was self-imposed.

Thus, Plaintiffs sufficiently alleged that the dismissal of the second petition imposed a substantial burden on their religious practice. Accordingly, the 4th Circuit vacated the district court’s judgment dismissing Plaintiffs’ substantial burden claim.