United States v. Jesse Brewer

708 F. App'x 96
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 18, 2017
Docket16-1462
StatusUnpublished
Cited by1 cases

This text of 708 F. App'x 96 (United States v. Jesse Brewer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jesse Brewer, 708 F. App'x 96 (3d Cir. 2017).

Opinion

OPINION *

CHAGARES, Circuit Judge.

Jesse Brewer (“Brewer”) appeals his judgment of conviction for Hobbs Act robbery and use of a firearm during a crime of violence following a jury trial. Brewer argues that the District Court erred in denying his motions to suppress evidence. He also challenges his sentence as substantively unreasonable. We will affirm.

I.

On May 15, 2013, a grand jury returned a two-count superseding indictment against Brewer and two co-defendants, Ja-mell Smallwood and Timothy Forbes. The superseding indictment charged that on July 12, 2012, Brewer, Smallwood, and Forbes committed armed robbery at White Jewelers in York, Pennsylvania in violation of 18 U.S.C. § 1951 (Count 1, Hobbs Act robbery) and 18 U.S.C. § 924(c)(1)(A) (Count 2, use of a firearm during a crime of violence).

The following events, which were captured by video surveillance, occurred during the robbery. The first male to enter the store, later identified as Smallwood, approached the store’s owner while brandishing a gun, A second robber, later identified as Brewer, approached the store owner and shot him three times. Brewer then accidently shot Smallwood, striking him in the abdomen. A third robber, later identified as Forbes, then entered the store with a hammer and a duffel bag. The three robbers proceeded to steal 53 Rolex watches valued at approximately $675,000. The robbers fled the scene in a getaway car, and the York Area Regional Police began an investigation.

Smallwood was admitted to Bronx Lebanon Hospital in New York a few hours after the robbery. New York Police Department (“NYPD”) officers responded to Bronx Lebanon Hospital to interview Smallwood. The NYPD officers contacted the York Area Regional Police to inquire about Smallwood and were advised of the White Jewelers robbery and that one of the robbers had been accidentally shot. Allentown Police officers then filed a criminal complaint against Smallwood and procured a warrant for his arrest. NYPD officers arrested Smallwood. At the time of his arrest, Smallwood had a cell phone in his possession. He admitted to the officers that it was his phone and that his phone number was (470) 334-5777 (hereinafter “cell phone 5777”). Appendix (“App.”) 77-78. NYPD officers seized the phone and subsequently turned it over to investigating officers with the York Area Regional Police.

Investigating officers interviewed Forbes’ girlfriend on July 13, 2012. She viewed security camera footage .of the White Jewelers robbery and identified Forbes as one of the robbers. She also identified Forbes’s cell phone number as (484) 707-1632 (hereinafter “cell phone 1632”). App. 76.

On July 20, 2012, investigating officers applied for and were granted search warrants for cell phone 5777, allegedly used by Smallwood, and cell phone 1682, allegedly used by Forbes. Investigators learned that cell phone 5777 was registered to Brewer. Additionally, a common call analysis of cell phones 5777 and 1632 revealed that both had multiple contacts with a third phone number, (347) 965-4252 (hereinafter “cell phone 4252”), around the time of the White Jewelers robbery. App. 92-93. This information was used to acquire a search warrant for cell phone 4252, which was also registered to Brewer.

Brewer filed two motions to suppress evidence, one relating to cell phone 5777 and one relating to cell phone 4252. The District Court denied Brewer’s motions to suppress on May 12, 2015. On September 16, 2015, at the conclusion of a three-day trial, the jury convicted Brewer on both counts. The District Court later sentenced Brewer to 240 months on Hobbs Act robbery, followed by life imprisonment on the § 924(c) charge, to run consecutively. App. 4, 126. Brewer timely filed this appeal.

II. 1

On appeal, Brewer argues that the District Court erred in denying the motion to suppress the records associated with cell phone 5777, the phone seized from Small-wood at Bronx Lebanon Hospital. He next argues that the records relating to cell phone 4252 must be suppressed as the unlawful fruit of an illegal search. He last argues that his sentence was substantively unreasonable. We have considered Brewer’s arguments and for the reasons set forth below, we will affirm. 2

A. 3

Brewer argues that the search relating to cell phone 5777 was invalid because the underlying affidavit lacked probable cause. The District Court concluded that Brewer did not have standing to challenge this search and, regardless, the search was proper. We agree.

The Fourth Amendment protects against “unreasonable searches and seizures.” U.S. Const. amend. IV. A search does not occur for Fourth Amendment purposes unless the individual challenging the search “manifested a subjective expectation of privacy” in the object searched, and society recognizes that expectation as reasonable. Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (quoting California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986)). Fourth Amendment rights are “personal in nature,” and a defendant has standing to challenge the admission of evidence only if his own legitimate expectation of privacy has been violated. Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Because “property rights are neither the beginning nor the end of [the Fourth Amendment] inquiry,” United States v. Salvucci, 448 U.S. 83, 91, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), a defendant who seeks to establish a subjective expectation of privacy in an object must show that he “took normal precautions to maintain his privacy.” United States v. Burnett, 773 F.3d 122, 131 (3d Cir. 2014) (quoting Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980)).

Brewer maintains that he had a reasonable expectation of privacy in the 5777 cell phone because he was the listed subscriber of the phone. The District Court correctly concluded that whatever interest Brewer may have had in the phone did not amount to an actual, subjective expectation of privacy therein. The phone was seized directly from Smallwood, who claimed ownership and control of the phone. Additionally, Brewer did not establish that he maintained the ability to exclude others from the phone or took precautions to ensure the privacy of the phone. We agree with the District Court that Brewer lacked standing to challenge the warrant relating to cell phone 5777.

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Bluebook (online)
708 F. App'x 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jesse-brewer-ca3-2017.