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4th Circuit upholds carjacking conviction of Baltimore man

A federal appeals court on Friday upheld the carjacking conviction of a Baltimore man who in October 2015 led police on a high-speed car chase into Fort Meade and was caught emerging from a storm drain the next day.

In a 3-0 decision, the 4th U.S. Circuit Court of Appeals rejected Dontae Small’s argument through counsel that his federal crime did not fit the legal definition of carjacking because he and his accomplices did not intend to maim or kill the vehicle owner’s when they pulled a gun on him.

The 4th Circuit, in its published ruling, also rejected Small’s argument that the trial judge improperly admitted at trial evidence seized from Small’s cellphone. Small’s counsel contended that Anne Arundel County police had violated Small’s constitutional protection against unreasonable searches by searching the phone without a warrant after Small discarded the device during the chase.

According to trial testimony, Brandon Rowe had just parked his silver Acura a block away from the Federal Hill house he shared with his fiancée when he was accosted on Oct. 4, 2015, by three masked men, including one who pointed a gun at his face and demanded he hand over everything he had.

Rowe surrendered his car keys but refused to give the masked men his house keys. His assailants patted him down but found nothing of value and let him go, according to testimony.

Three days later, the Acura was spotted in the Arundel Mills mall parking lot by a security camera. Police then waited for the driver – who turned out to be Small — to return. When Small got behind the wheel at about 8:50 p.m., an officer pulled his squad car behind the Acura.

But Small drove away, eventually speeding through the outbound gate at Fort Meade, about five miles from the mall, and then through a fence surrounding the National Security Agency facility before crashing down an embankment and discarding his shirt, a hat and his cellphone.

Small ran and hid, prompting the police to search his phone and call someone identified on the device as “Sincere my Wife.”

Sincere, later identified as Kimberly Duckfield, said the phone belonged to her husband, Dontae Small. Police obtained a photo of Small, which matched the image on the mall’s security camera.

Police caught Small at 10 the next morning as he emerged from a sewer.

A U.S. District Court jury in Baltimore convicted Small of carjacking, conspiracy to commit carjacking and destruction of government property. Small, who was sentenced to 27 years in prison, appealed to the 4th Circuit, challenging the sufficiency of the carjacking evidence and the constitutionality of the search of his cellphone.

Upholding the conviction, the 4th Circuit said the jury reasonably concluded that the brandishing of a gun in the victim’s face showed an intent to do serious bodily harm if the car were not surrendered.

“First and foremost, an assailant’s wielding a gun provides a strong indication of intent to inflict bodily harm if met with resistance, particularly when the perpetrator did not merely display a gun … but rather pointed the gun at the (victim) in demanding car keys and other possessions,” Judge J. Harvie Wilkinson III wrote for the court.

“In addition, an assailant’s physical touching of a victim during a carjacking – whether by hand or with a weapon – supports a jury’s finding of intent,” Wilkinson added. “We decline to invade the jury’s province here.”

In addition, the 4th Circuit said Small’s Fourth Amendment protection against unreasonable searches did not apply because he had “abandoned” the phone.

“When Small discarded the phone, he ran the risk that total strangers would come upon it,” Wilkinson wrote. “In tossing the phone, he relinquished his reasonable expectation of privacy in it as well.”

The court distinguished Small’s “abandonment” of his phone – and with that his protection against police searching it without a warrant — from a situation in which someone simply misplaces a phone, an occurrence that Wilkson said happens “all the time.”

“(T)he simple loss of a phone does not entail the loss of a reasonable expectation of privacy,” Wilkinson wrote. “Thus, such ordinary mishaps do not constitute ‘abandonments.’”

Small’s appellate attorney, Brandon L. Boxler, did not return a telephone message Friday afternoon seeking comment on the 4th Circuit’s decision. Boxler is with Gibson, Dunn & Crutcher LLP in Washington.

Wilkinson was joined in the opinion by Judges Robert B. King and Pamela A. Harris.

The 4th Circuit rendered its decision in United States of America v. Dontae Small, No. 18-4327.

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