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Baltimore man appeals carjacking conviction to Supreme Court

A Baltimore man who led police on a high-speed car chase into Fort Meade five years ago has appealed his subsequent carjacking conviction to the U.S. Supreme Court.

In papers filed with the justices this month, Dontae Small argued through counsel that the trial judge improperly admitted into evidence information retrieved from Small’s cellphone. Brandon L. Boxler, Small’s lead attorney, contended that Anne Arundel County police violated Small’s constitutional protection against unreasonable searches by searching the phone without a warrant after Small discarded the device during the manhunt.

Boxler also argued that Small’s actions did not fit the definition of carjacking in the federal statute because he and his accomplices did not intend to maim or kill the vehicle owner when they pulled a gun on him.

The 4th U.S. Circuit Court of Appeals rejected these arguments last year, prompting Small’s request for Supreme Court review. The U.S. Department of Justice, which prosecuted Small, has waived its right to respond to his request.

The justices are scheduled to consider Small’s petition for review at their private April 3 conference. The case is docketed at the high court as Dontae Small v. United States, No. 19-1102.

The 4th Circuit ruled in December that 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. The court also held in its published decision that Small forfeited his Fourth Amendment protection when he “abandoned” the phone while trying to elude police.

In Small’s petition to the Supreme Court, Boxler cited the justices’ landmark 2014 decision in Riley v. California that police generally need a search warrant to examine the contents of cellphones seized from people during criminal investigations because of the extensive personal information individuals store on the handheld devices.

A person’s constitutionally protected interest in keeping that information private is not diminished when he or she discards the phone, Boxler wrote.

He added that the high court’s line of decisions holding that police need not get a warrant before searching a person’s “abandoned” property, such as garbage left at the curb, does not apply to cellphones.

“This case is an opportunity for the (Supreme) Court to reiterate the unique and heightened privacy interests that people have in the data on their cell phones, and to continue refining what expectations of privacy are ‘reasonable’ in the digital age,” wrote Boxler, of Gibson, Dunn & Crutcher LLP in Washington.

“This refinement is especially important for the abandonment exception to the warrant requirement because the court has not considered the exception in nearly three decades – long before cell phones became ‘such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy,’” Boxler added, quoting from Riley.

Boxler also stated that the 4th Circuit’s interpretation of carjacking’s definition differed from that of the 9th and 6th U.S. Circuit Courts of Appeal, which held that brandishing a gun does not by itself establish an intent to maim or kill. He urged the Supreme Court to hear Small’s appeal and to resolve the conflict among the circuit courts.

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 via 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. Small discarded 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.


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