United States v. Reginald Twitty

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 22, 2025
• Docket: 23-4234
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4234

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

REGINALD ANTONIO TWITTY,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. Timothy M. Cain, Chief District Judge. (6:19-cr-00898-TMC-1)

Argued: March 19, 2025 Decided: July 22, 2025

Before THACKER, RICHARDSON, and RUSHING, Circuit Judges.

Affirmed by unpublished opinion. Judge Thacker wrote the majority opinion, in which Judge Richardson and Judge Rushing joined. Judge Thacker wrote a separate concurring opinion.

ARGUED: Elizabeth Anne Franklin-Best, ELIZABETH FRANKLIN-BEST, P.C., Columbia, South Carolina, for Appellant. Leesa Washington, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. ON BRIEF: Jillian M. Lesley, ELIZABETH FRANKLIN-BEST, P.C., Columbia, South Carolina, for Appellant. Adair F. Boroughs, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. USCA4 Appeal: 23-4234 Doc: 80 Filed: 07/22/2025 Pg: 2 of 43

Unpublished opinions are not binding precedent in this circuit.

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THACKER, Circuit Judge:

Reginald Antonio Twitty (“Appellant”) was the subject of an investigation into

alleged drug trafficking between July 2018 and October 2019. Appellant was indicted in

October 2019 and ultimately pled guilty to conspiracy to commit drug trafficking and

possession of a firearm in furtherance of a drug crime. In doing so, Appellant reserved his

right to appeal the denial of two motions to suppress in connection with a vehicle search

and certain GPS tracking warrants utilized during the investigation. The district court

subsequently sentenced Appellant to 144 months of imprisonment.

On appeal, Appellant argues that the vehicle search and the GPS tracking warrants

were not supported by probable cause. Appellant further argues that Title III of the

Omnibus Crime Control and Safe Streets Act of 1968 (the “Wiretap Act”), 18 U.S.C.

§§ 2510 et seq., should apply to the Government’s GPS monitoring of him “because the

great invasion of privacy that results from . . . [GPS tracking] is akin to that of a wiretap.”

Appellant’s Opening Br. at 44. Finally, Appellant argues that the Government’s lengthy

delays before filing the warrant returns1 require suppression of the evidence against him.

In response, the Government urges us to enforce Appellant’s appeal waiver.

We conclude that Appellant’s appeal waiver is ambiguous and, therefore,

unenforceable. As set forth in detail below, on the merits, we hold that probable cause

supported the vehicle search and that the fruits of the search constituted a substantial basis

1 Federal Rule of Criminal Procedure 41(f)(2)(B) requires the officer executing a warrant for a tracking device to return it to the judge designated in the warrant within 10 days after the end of the tracking.

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to issue the GPS tracking warrants. We further hold that the Wiretap Act does not apply

here because the contents of Appellant’s wire communications were not intercepted.

Finally, we hold that the district court did not err in declining to suppress evidence based

on the Government’s numerous and lengthy delays in filing the warrant returns because

Appellant has failed to allege that he was prejudiced by the late returns.

Therefore, we affirm.

I.

A.

The Investigation

1.

2018 Package Interception

In July 2018, the United States Postal Inspection Service (“USPIS”) intercepted a

priority mail package, which was en route to Greenville, South Carolina, from Los

Alamitos, California. The USPIS agents in California obtained a warrant authorizing a

search of the package. The package contained approximately two kilograms of cocaine.

A latent fingerprint analysis conducted by the USPIS forensic laboratory revealed

Appellant’s fingerprint on the inner flap of the package.

2.

Mississippi Nissan Sentra Search

Eight months later, on March 15, 2019, in Mississippi, Deputy John Johnson, who

had 23 years of law enforcement experience, initiated a traffic stop on a commercial tractor

trailer transporting multiple vehicles (the “car hauler”). As Deputy Johnson approached

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the driver of the car hauler, he noticed a blue Nissan Sentra in the middle of the car hauler.

The Nissan Sentra captured the attention of Deputy Johnson because he observed that the

undercoating of the vehicle, a paint-like substance that serves as a barrier to prevent the

onset of rust or oxidation, appeared to be freshly applied in spots rather than uniformly

applied all at once as would be typical. Deputy Johnson further observed that the heat

shield, a thermal guard to protect the underside of the vehicle from the heat generated by

the engine and exhaust system, was bent at a downward angle. And he observed “tooling”

to the bolts on the underside of the vehicle, which indicated a removal and reinstallation of

the bolts. J.A. 162.2 Based on these indicators -- along with his knowledge that the Nissan

Sentra is a type of vehicle commonly outfitted by drug traffickers with hidden

compartments, or “floor traps,” used to store money or drugs -- Deputy Johnson concluded

that the vehicle could be involved in drug trafficking activity. J.A. 161.

The driver of the car hauler provided Deputy Johnson with the registrations and bills

of lading for the vehicles on the car hauler. The bill of lading for the Nissan Sentra reflected

that it was being shipped from an individual named Jorge Crespo in Long Beach,

California, to Appellant in Greenville, South Carolina. But, the issuer’s signature at the

bottom of the bill of lading was “Javier,” which, to Deputy Johnson, “appeared to be

different from the sender.” J.A. 165, 578–80. According to Deputy Johnson, the person

who signs to ship the vehicle, in this case Jorge Crespo, is typically the same as the issuer

who signs the bottom of the bill of lading. Since that was not the case in this instance,

2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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Deputy Johnson found it suspicious that “too many people [were] involved in this vehicle.”

J.A. 165. The phone numbers listed on the bill of lading also stood out to Deputy Johnson

because both were from California even though the vehicle was being shipped to Appellant

in South Carolina. Deputy Johnson ran the license plate of the Nissan Sentra and

determined that it was registered to the sender, Jorge Crespo, but at a post office box

address which was different than the shipping address associated with the vehicle’s sender

listed on the bill of lading. These facts further indicated to Deputy Johnson that the vehicle

may have been involved in drug trafficking activity.

As a result, Deputy Johnson asked the driver of the car hauler for consent to search

the vehicle. The driver consented. Deputy Johnson conducted a search of the Nissan

Sentra while it was still on the car hauler on the side of the road. When Deputy Johnson

opened the door of the vehicle, he smelled fresh paint and noticed further tooling on the

bolts holding the seats in place. He also discovered “unaccounted for space between the

floor and undercarriage” after conducting a depth check3 with his hand. J.A. 168. These

observations indicated to Deputy Johnson that the seats had been removed from the Nissan

Sentra in order to install a floor trap underneath them. Thereafter, Deputy Johnson and

another officer pulled up the vehicle’s carpet and discovered further evidence of

modifications, including new sheet metal on the floor and hinges behind the front seats.

3 To conduct a depth check, an officer “stick[s] [their] hand on [the floor of the vehicle] and the bottom” of the vehicle to ascertain whether “excessive” or “unaccounted for” space is present. J.A. 167–68. The purpose of the test is to understand whether there may be a modified area within a vehicle that could hold contraband.

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At that point, Deputy Johnson requested that the driver of the car hauler follow him

to the law enforcement automobile shop where the driver unloaded the Nissan Sentra from

the car hauler. A K-9 unit conducted a dog sniff, and the dog alerted that the vehicle was

positive for narcotics. After further inspecting the vehicle by lifting the sheet metal and

lifting the driver and passenger seats to gain access to the compartments under each seat,

Deputy Johnson discovered two floor traps. He was able to gain access to the hidden

compartments, but the compartments were empty.

3.

Mississippi GPS Warrant

The same day, Investigator Jon Cooley, a task force officer with Homeland Security

Investigations (“HSI”) in Jackson, Mississippi, joined the investigation. Because the

Nissan Sentra had been headed to Greenville, South Carolina, Investigator Cooley

conferred with HSI Special Agent Paul Criswell and HSI Task Force Officer Donnie

Gilbert, who were based in Greenville, South Carolina. Investigator Cooley and Special

Agent Criswell, with input from the respective state and federal prosecuting attorneys in

Jackson and Greenville, decided that Investigator Cooley would obtain a Mississippi GPS

warrant authorizing investigators to place a tracking device on the Nissan Sentra. The

officers further determined that Special Agent Criswell’s team in South Carolina would

then pursue a federal tracking warrant at the “earliest convenient time.” J.A. 188.

Investigators in Mississippi were also informed by the South Carolina investigators that

Appellant had “an extensive history for drug violations and violent crime.” J.A. 138.

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As planned, on the same evening, Investigator Cooley obtained a Mississippi state

search warrant authorizing the installation of a GPS tracking device on the Nissan Sentra

(“the Mississippi GPS Warrant”). The affidavit submitted with the warrant application

detailed Deputy Johnson’s traffic stop; what was observed during the subsequent search of

the Nissan Sentra, including the smell of fresh paint, the tooling marks to the bolts, and the

positive dog sniff; and the fruits of the search, that is, the floor traps. The affidavit also

explained that the Nissan Sentra’s bill of lading reflected that the vehicle would be

delivered to Appellant, who had a criminal history that included drug violations. Finally,

the affidavit reflected that that Investigator Cooley had 26 years of experience investigating

drug trafficking and that investigators believed the vehicle would be used in furtherance of

drug trafficking, particularly because investigators have learned that drug traffickers are

using car haulers as a means to distance themselves from vehicles transporting drugs and

money.

Pursuant to the Mississippi GPS Warrant, a return of the warrant was due 45 days

later, that is, April 29, 2019. Deputy Johnson installed the device on the vehicle in the

presence of Officer Cooley the same day the warrant was issued. According to Investigator

Cooley, the return was not made until “several months later.” J.A. 149.

4.

South Carolina GPS Warrant

On March 19, 2019, once Special Agent Criswell knew that the Nissan Sentra had

arrived in South Carolina, he applied for a search warrant to install a GPS tracking device

on it (“the South Carolina GPS Warrant”). The affidavit submitted with the warrant

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application detailed the July 2018 package interception and subsequent USPIS

investigation, the Mississippi Nissan Sentra search, and the Mississippi GPS Warrant. The

affidavit also averred that investigators believed Appellant was using the vehicle to

transport drug proceeds from South Carolina to California, that the vehicle had been and

would continue to be used to further a drug conspiracy, and that the GPS tracker would

ultimately lead to further evidence. A federal magistrate judge in Greenville, South

Carolina granted the warrant. Pursuant to the South Carolina GPS Warrant, a return of the

warrant was due ten calendar days after the use of the tracking device ended.

Instead of installing a new GPS tracking device in South Carolina, HSI investigators

gained access to and monitored the Nissan Sentra using the same device that had been

installed in Mississippi. Agents tracked the delivery of the vehicle to Spartanburg, South

Carolina.

The South Carolina GPS Warrant return reflects that the monitoring occurred from

March 19 to April 21, 2019, and that the tracking device was removed on October 6, 2019.

The return of the South Carolina GPS Warrant was not made until January 21, 2020.

5.

Ping Warrants

As the investigation continued, agents reviewed Appellant’s Department of Motor

Vehicle (“DMV”) records, United States Postal Service (“USPS”) records, and flight

records. They also conducted physical surveillance of Appellant and his girlfriend, who

was believed to be a co-conspirator. Based upon these investigations, agents learned that

Appellant was using multiple telephones, which were referred to throughout the

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investigation as target telephones one, two, and three (“TT-1,” “TT-2,” “TT-3”).

Investigators applied for and obtained three warrants for real time tracking and geo-

location monitoring of these telephones (the “Ping Warrants”). The Ping Warrants were

based, in part, on the July 2018 USPIS package interception and the March 2019

Mississippi Nissan Sentra search. The Ping Warrants were granted on March 21, 2019,

(TT-1), August 29, 2019, and September 27, 2019, (TT-2),4 and September 9, 2019, (TT-

3).

The Ping Warrants authorized the acquisition of both historical cell site data and

geo-location data, either through real time tracking data5 or through the GPS function of

the target telephone. The Ping Warrants authorized acquisition of historical cell site data

for 30 days prior to the date the order was signed, as well as geo-location data for either

ten days from the date the order was signed or thirty days after the order was served on the

service provider of the target telephone, whichever date occurred sooner. Each warrant

stated that a written return was to be made to the magistrate judge within ten calendar days

of the order’s expiration. The returns for the three Ping Warrants were not made until

January 28 and 29, 2021.

4 After the initial monitoring period for TT-2 expired, law enforcement filed an application for an extension of the warrant for TT-2. 5 The Ping Warrants explained that the real time tracking data included the target telephone’s location, range, bearing, timing and signal strength data in relation to the cellular tower.

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6.

Package Interceptions

Appellant’s USPS records revealed ten different addresses associated with

Appellant in Greenville, Spartanburg, and Roebuck, South Carolina. USPIS investigations

into parcels sent to Appellant’s known addresses revealed 50 suspect parcels, containing a

total of 450 pounds of suspected drugs, which were similar in appearance to the July 2018

intercepted parcel that began the investigation and contained two kilograms of cocaine.

From April 17 to April 26, 2019, 15 packages were mailed from the Los Angeles,

California area to addresses associated with Appellant in South Carolina. On April 22,

2019, agents executed a search warrant on an intercepted parcel shipped to one of

Appellant’s known addresses. Agents discovered two “bundled bricks which were

wrapped in birthday wrapping paper, duct tape, vacuum-seal, and carbon paper.” J.A. 463.

After opening the packages, agents discovered a white powder that field tested positive for

cocaine. The package contained 2.35 kilograms of cocaine. The cell phone number

associated with this package was the number for TT-1.

Flight information for Appellant reflected that he made numerous trips between

Greenville, South Carolina and Los Angeles, California, which corresponded with inbound

parcel shipments from California to Appellant’s known addresses in South Carolina. When

booking those flights, Appellant provided TT-2 as his telephone number.

On September 5, 2019, USPIS agents deployed a K-9 unit to conduct a dog sniff on

a parcel travelling from one of Appellant’s known South Carolina addresses to a California

address. The drug dog alerted for the presence of narcotics. Thereafter, law enforcement

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executed a search warrant for the contents of the parcel. The parcel contained $45,000 in

cash, and it was packaged in a similar manner to the previously intercepted drug packages -

- in birthday wrapping paper in vacuum seal bags with dryer sheets, carbon paper, packing

paper, and silver duct tape. The telephone number associated with TT-3 was used to

request status updates for that parcel. USPS employees at the location from which the

package was shipped in South Carolina identified Appellant’s girlfriend as the person who

mailed the package.

7.

Appellant’s Arrest

Because law enforcement knew Appellant was travelling to South Carolina, they

were stationed at the Georgia/South Carolina border with the goal of intercepting him. On

October 6, 2019, Greenville County Deputy Sherriff William Jumper, who was also an HSI

task force officer, conducted a traffic stop and search of Appellant’s vehicle in South

Carolina. Deputy Jumper stopped Appellant because he was speeding. Deputy Jumper

was aware that Appellant had an outstanding arrest warrant based upon the investigation

described above. Therefore, after informing Appellant that the vehicle was stopped for

speeding, Officer Jumper informed other HSI officers that he had detained Appellant. Task

Force Officers Chris Hines and David Harrison responded to Officer Jumper’s call. Officer

Harrison arrested Appellant pursuant to the arrest warrant. Meanwhile, after a K-9 unit

conducted a dog sniff and the drug dog alerted that the vehicle was positive for narcotics,

Officers Jumper and Hines searched Appellant’s vehicle. The officers discovered two

after-market hidden compartments in the vehicle. The compartments contained over nine

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kilograms of cocaine, more than two kilograms of methamphetamine, and approximately

986 grams of heroin. Officers also seized an AR-15 rifle and ammunition from the vehicle.

Thereafter, federal search warrants were executed at three residences known to be

associated with Appellant and investigators recovered two kilograms of cocaine, five

kilograms of heroin; approximately 891 grams of a mixture containing heroin, morphine,

and codeine; and approximately 250 grams of morphine. Four firearms, various assorted

ammunition, and drug distribution paraphernalia were also seized.

B.

The Prosecution

On November 5, 2019, a federal grand jury returned an indictment charging

Appellant and his girlfriend with conspiracy. Appellant was charged with one count of

conspiracy to possess with intent to distribute and to distribute heroin, marijuana,

methamphetamine, and cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),

841(b)(1)(D), and 846 (Count 1); three counts of unlawful use of a communication facility

in violation of 21 U.S.C. §§ 843(b) and 18 U.S.C. § 2 (Counts 2, 3, 4); one count of

interstate travel and transportation in aid of drug trafficking business in violation of 18

U.S.C. § 1952(a)(3) and 18 U.S.C. § 2 (Count 6);6 and one count of possession with intent

to distribute one kilogram or more of heroin, 500 grams or more of a mixture or substance

containing a detectable amount of methamphetamine, and five kilograms or more of a

mixture or substance containing a detectable amount of cocaine in violation of 21 U.S.C.

6 Appellant was not charged in Count 5 of the indictment.

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§§ 841(a)(1) and 841(b)(1)(A) as well as 18 U.S.C. § 2 (Count 7). On October 13, 2020,

a federal grand jury returned a superseding indictment, adding charges as to Appellant -

- one count for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g),

924(a)(2), and 924(e) (Count 8), and one count of possession of a firearm in furtherance of

drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A) (Count 9).

On January 23, 2022, Appellant filed motions to suppress, challenging each step of

the investigation: the Mississippi Nissan Sentra search, the Mississippi GPS Warrant, the

South Carolina GPS Warrant, the Ping Warrants, the stop and search culminating in

Appellant’s arrest on October 6, 2019,7 the delayed returns of the warrants, and the

Government’s alleged Wiretap Act violation.

On March 28 and 29, 2022, the district court held a suppression hearing on all of

the motions. Following the hearing, the district court denied each of Appellant’s motions

to suppress. Relevant here, with respect to the Mississippi Nissan Sentra search, the district

court assumed that Appellant had standing to challenge the stop and search of the Nissan

Sentra on the car hauler. Then the court determined that it was reasonable for an officer to

conclude that the driver of the car hauler validly consented to a search of the inside of the

Nissan Sentra because a third party with actual or apparent authority may consent to

“whatever was reasonable and not inconsistent with [the vehicle’s] entrustment to him”

and, in this case, “the driver of the car hauler was given the keys to the vehicle, the doors

7 Appellant initially contested the October 6, 2019 stop and search of his vehicle. However, Appellant does not renew his arguments on appeal.

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were unlocked, and the driver was required to enter the vehicle at least for the purposes of

driving the car on and off the hauler.” J.A. 436–37 (quoting United States v. Eldridge, 302

F.2d 463, 466 (4th Cir. 1962)). However, with respect to the officers pulling up the carpet

in the vehicle in order to discover whether the car had been modified with a floor trap, the

district court determined that it was not reasonable for the officers to conclude that the

driver could consent to the “invasive search into the upholstery, carpeting, and inner

mechanics of the vehicle.” Id. at 438.

Nevertheless, the district court determined that “the entire search, including the

search under the carpeting, was supported by probable cause, and, therefore, fell within the

automobile exception to the requirement for a search warrant.” J.A. 438 (internal quotation

marks omitted). The district court concluded that it was reasonable for Deputy Johnson to

believe that evidence of drug trafficking would be located inside the vehicle given his many

years of experience; the spottily painted undercoating; the tooling markings visible on the

bolts on the underside of the vehicle; the bent heat shield; and, the apparent discrepancies

on the bill of lading, including the post office box listed as the address of the car owner

being different than the shipping address associated with the vehicle’s listed sender. The

district court concluded that Deputy Johnson’s search under the carpet was further

supported by probable cause based on the smell of fresh paint when he opened the car door,

the additional tooling marks to the bolts securing the front seats, and the depth check

indicating unaccounted for space, all of which indicated modifications had been made to

install a floor trap in the vehicle. The district court therefore determined that the search

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fell within the automobile exception because it was supported by probable cause, and the

court denied Appellant’s motion to suppress.

With respect to the Mississippi GPS Warrant, the district court held that it was

reasonable for the Mississippi state court judge to determine that there was probable cause

to support the GPS tracking warrant based on evidence obtained during the search of the

Nissan Sentra, the K-9 alert to the presence of narcotics, the knowledge of the officer about

drug trafficking operations, and Appellant’s criminal history.

With respect to the South Carolina GPS Warrant, the district court held that probable

cause existed to support the warrant. The district court highlighted that Agent Criswell’s

affidavit relayed the evidence from the Mississippi Nissan Sentra search, the evidence of

the July 2018 USPIS package interception implicating Appellant, and Appellant’s criminal

history, all of which, along with Agent Criswell’s extensive experience “supported the

belief that the [Nissan] Sentra was involved in criminal activity.” J.A. 451.

With respect to the late returns of the GPS and Ping Warrants, Appellant argued that

the Government’s noncompliance with timing requirements was prejudicial. Nevertheless,

the district court determined that Appellant failed to make a showing of prejudice by failing

to allege any particular prejudicial effect of the late returns. Further, the district court

credited the testimony of the officers at the suppression hearing that the late returns of the

warrants were unintentional.

As to the Ping Warrants in connection with TT-1, TT-2, and TT-3, the district court

determined that the Ping Warrants were supported by probable cause because the affidavit

attached to the application was sufficiently detailed regarding the investigation into the

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target telephones and how they were being used to facilitate criminal activity. The district

court further rejected Appellant’s argument that the Government was required to adhere to

the more stringent requirements of the Wiretap Act.

Thereafter, Appellant and the Government entered into a conditional plea agreement

in which Appellant agreed to plead guilty to a drug trafficking conspiracy in violation of

21 U.S.C. §§ 841(a)(l), 841(b)(l)(A), 841(b)(l)(D), and 846 (Count One) and possession of

a firearm in furtherance of a drug crime in violation of 18 U.S.C. § 924(c)(l)(A) (Count

Nine). In relevant part, the parties agreed “that the Defendant maintains the right to appeal

the Court’s order entered at ECF Number 410 only as that order relates to Defendant’s

Motion to Suppress at ECF Number 350 (captioned “Wiretap Violation”) and Defendant's

Motion to Suppress at ECF Number 353 (captioned “South Carolina GPS Tracking

Warrant”).” J.A. 506. For its part, the Government agreed to dismiss the remaining counts

of the indictment.

At sentencing, the district court reiterated to Appellant that he had entered into an

appeal waiver and noted that Appellant had “carved out” two provisions from such waiver:

THE COURT: Mr. Twitty, you signed a Plea Agreement, which we went over at the time of your guilty plea . . . in paragraph 13 of that Plea Agreement, you agreed to waive the right to contest your conviction or sentence in any direct appeal or other post-conviction action, including any proceedings under 28 U.S.C. Section 2255 . . . with the following items specifically preserved for appeal in your conditional guilty plea pursuant to Rule 11(a)(2). “[You] maintain the right to appeal the Court’s Order entered at ECF number 410 only as that Order relates to your Motion to Suppress at ECF number [3]50 (sic), captioned ‘wiretap violation.’ And [your] Motion to Suppress at ECF number 353 captioned, ‘South Carolina GPS tracking warrant.’” So, you have had an appellate waiver,

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which carved out that provision, but in other respects you have waived your right to appeal. . . . Do you understand all of that?

[APPELLANT]: Yes, sir.

J.A. 569–71.

Appellant timely appealed. On appeal, Appellant challenges the Mississippi Nissan

Sentra search, the Mississippi GPS Warrant, the South Carolina GPS Warrant, the alleged

Wiretap Act violation based on the Ping Warrants, as well as the late returns of the GPS

and Ping Warrants.

II.

We review an appellate waiver de novo to determine whether the waiver is

enforceable. United States v. Smith, 134 F.4th 248, 256 (4th Cir. 2025) (quoting United

States v. Boutcher, 998 F.3d 603, 608 (4th Cir. 2021)).

When examining the denial of a motion to suppress, we review the district court’s

legal determinations de novo and its factual conclusions for clear error. United States v.

Mayberry, 125 F.4th 132, 143 (4th Cir. 2025). In conducting this review, we evaluate the

evidence in the light most favorable to the Government as the prevailing party in the district

court.

III.

Appeal Waiver

We first address whether Appellant’s arguments fall outside the scope of the appeal

waiver.

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The Government urges that we enforce the appeal waiver and consider only

Appellant’s arguments focused on the South Carolina GPS Warrant and the Wiretap Act.

Appellant counters that the appeal waiver is inapplicable because the fruits of the

Mississippi Nissan Sentra search, including Deputy Johnson’s observations of the vehicle

(i.e., the tooling to the bolts, spottily painted underside, the depth discrepancy, and the

smell of fresh paint), the K-9 alert to the presence of narcotics, and the existence of the

vehicle’s floor traps were used to obtain the Mississippi GPS Warrant, and, subsequently,

the South Carolina GPS Warrant were all considered by the district court as the basis for

rejecting Appellant’s motion to suppress the South Carolina GPS Warrant. Therefore,

Appellant argues that both the Mississippi car search and Mississippi GPS Warrant are so

intertwined with the South Carolina GPS Warrant that they must be considered on appeal.

Appellant further urges that any ambiguity in the plea agreement should be construed

against the Government as the drafter of the document.

“When we interpret plea agreements, we apply principles of contract law to ensure

that each party receives the benefit of the bargain[.]” United States v. Boutcher, 998 F.3d

603, 608 (4th Cir. 2021) (citation and internal quotation marks omitted). And “[b]ecause

appellate waiver provisions usually are drafted by the government, and because such

provisions implicate a defendant’s constitutional rights, we hold the government to a

‘greater degree of responsibility’ for any ambiguities than the defendant, or even than the

drafter of a provision of a commercial contract.” United States v. Yooho Weon, 722 F.3d

583, 588 (4th Cir. 2013) (citation omitted). “[W]e will enforce an appellate waiver

provision against a defendant only if that provision is clearly and unambiguously

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applicable to the issues raised by the defendant on appeal.” Id. To determine whether a

plea agreement is ambiguous, “courts examine the entire contract, considering particular

words not as if isolated from the context, but in the light of the obligation as a whole. Form

should not prevail over substance, and a sensible meaning of words should be sought.”

United States v. Under Seal, 902 F.3d 412, 419 (4th Cir. 2018) (citation omitted).

In relevant part, the appeal waiver states: “Pursuant to the terms of this plea

agreement, the parties agree that the Defendant maintains the right to appeal the Court’s

[suppression] order . . . only as that order relates to Defendant’s Motion to

Suppress . . . []captioned ‘Wiretap Violation’[] and Defendant’s Motion to

Suppress . . . []captioned ‘South Carolina GPS [] Warrant’[].” J.A. 506.

Here, we cannot say that the language of the appeal waiver provision is “clearly and

unambiguously applicable” to Appellant’s arguments regarding the Mississippi Nissan

Sentra search and the Mississippi GPS Warrant. Yooho Weon, 722 F.3d at 588. This is

because the district court found the South Carolina GPS Warrant to be supported by

probable cause based, in part, on both the Mississippi Nissan Sentra search and the

Mississippi GPS Warrant. As a result, the merits of the South Carolina GPS Warrant’s

probable cause analysis on appeal are premised on the probable cause determinations of

the Mississippi Nissan Sentra search and the Mississippi GPS Warrant. Therefore, because

we necessarily must consider whether the Mississippi Nissan Sentra search and the

Mississippi GPS Warrant were supported by probable cause in order to resolve the merits

of Appellant’s challenge to the South Carolina GPS Warrant, we hold that Appellant’s

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appeal falls outside the scope of the appeal waiver. A determination otherwise would allow

“[f]orm . . . [to] prevail over substance.” Under Seal, 902 F.3d at 419.

Alleged Fourth Amendment Violations

In this appeal, Appellant principally challenges the probable cause bases of multiple

steps in the Government’s investigation. First, Appellant argues that the Mississippi

Nissan Sentra search was unsupported by probable cause, and, therefore, not lawful

pursuant to the automobile exception. As a result, Appellant argues that the Mississippi

GPS Warrant was also unsupported by probable cause because the fruits of the vehicle

search were used to obtain the Mississippi GPS Warrant. Consequently, Appellant argues

that the subsequent South Carolina GPS Warrant was also not supported by probable cause

because it was founded on the initial Mississippi Nissan Sentra search and the Mississippi

GPS Warrant.

The Government counters that the Mississippi Nissan Sentra search falls within the

automobile exception because Officer Johnson had probable cause for the vehicle search.

The Government further argues that the Mississippi GPS Warrant was supported by

probable cause, and, thus, the South Carolina GPS Warrant was likewise supported by

probable cause. Alternatively, the Government asserts that even if the South Carolina GPS

warrant was not supported by probable cause, the officers relied in objective good faith on

the South Carolina GPS Warrant, so the evidence should not be suppressed.

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The Fourth Amendment protects individuals against “unreasonable searches and

seizures.” U.S. Const. amend. IV. “A ‘search’ occurs for purposes of the Fourth

Amendment where the government violates a person’s ‘reasonable expectation of

privacy.’” United States v. Taylor, 54 F.4th 795, 803 (4th Cir. 2022) (quoting Katz v.

United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (citation omitted)).

Generally, government agents cannot execute a search without first obtaining a warrant

based on “probable cause.” U.S. Const. amend IV. The installation and monitoring of a

GPS trafficking device is a search within the meaning of the Fourth Amendment. United

States v. Jones, 565 U.S. 400, 404 (2012).

“A finding of probable cause does not require an actual showing of criminal

activity.” United States v. Mayberry, 125 F.4th 132, 143 (4th Cir. 2025) (citing Illinois v.

Gates, 462 U.S. 213, 243 n.13 (1983)). “Instead, ‘a fair probability’ ‘or substantial chance

of criminal activity’ is sufficient to establish probable cause.” Id. at 143 (quoting Gates,

462 U.S. at 238, 243 n.13) (citation omitted).

A probable cause assessment by a magistrate judge involves making “‘a practical,

common-sense decision whether, given all the circumstances set forth in the affidavit

before him . . . , there is a fair probability that contraband or evidence of a crime will be

found.’” United States v. McNeal, 818 F.3d 141, 150 (4th Cir. 2016) (quoting Gates, 462

U.S. at 238). As a reviewing court, we are obliged to accord “great deference” to the

magistrate’s assessment of the facts presented, “asking only whether the judicial officer

had a substantial basis for finding probable cause.” United States v. Blakeney, 949 F.3d

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851, 859 (4th Cir. 2020) (citation and internal quotation marks omitted). Even if a search

warrant is later determined to lack probable cause, the evidence obtained will not be

suppressed if the executing officer relied on the warrant in objectively reasonable good

faith. See id. (citing Leon, 468 U.S. at 922–23).

We begin with the question of whether probable cause existed to justify the

Mississippi Nissan Sentra search pursuant to the automobile exception.

Expectation of Privacy

The “capacity to claim the protection of the Fourth Amendment depends . . . upon

whether the person who claims the protection . . . has a legitimate expectation of privacy

in the invaded place.” United States v. Castellanos, 716 F.3d 828, 833 (4th Cir. 2013)

(quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)). The expectation of privacy must be

“‘objectively reasonable.’” United States v. Rose, 3 F.4th 722, 727 (4th Cir. 2021) (quoting

Castellanos, 716 F.3d at 832 & n.3). A defendant bears the burden of showing that he

possesses a reasonable expectation of privacy. See id.

In determining whether Appellant possessed a reasonable expectation of privacy in

the Nissan Sentra, the district court distinguished United States v. Castellanos, where we

determined that the defendant did not have a reasonable expectation of privacy in a vehicle

being shipped across the country on a car hauler. The district court highlighted that the

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defendant in Castellanos was not associated with the vehicle’s shipment “in any way.”

J.A. 431 (citing 716 F.3d at 833). As the district court stated, the instant situation is

different because Appellant’s name “was listed as the recipient of the vehicle in

question . . . [and] [t]he bill of lading specifically indicated that he would receive the

vehicle and pay cash for it upon receipt in Greenville, South Carolina.” Id. (emphasis in

original). The court then assumed that Appellant had standing to challenge the search,

reasoning that “[i]t would be hypertechnical to assert that the products of the search, i.e.,

the existence of various aftermarket compartments, can be used against [Appellant]

personally in obtaining various subsequent warrants and in his ultimate prosecution, but

that he has no authority to challenge the underlying initial search.” J.A. 435. For the

purposes of this appeal, we assume without deciding that Appellant had a reasonable

expectation of privacy and, therefore, standing, to challenge the Mississippi Nissan Sentra

search. See e.g., City of Ontario, Cal. v. Quon, 560 U.S. 746, 760 (2010) (assuming

arguendo that a reasonable expectation of privacy existed).

Consent

Next, the district court viewed the initial search of the vehicle, up until the officers

pulled up the carpet, as justified by the car hauler driver’s valid consent. The court

acknowledged that, although the driver could consent to looking around inside the vehicle,

the driver would not have been able to consent to a more invasive search because “in

entrusting the vehicle to the driver for shipment, whomever handed over the keys did not

envision such entrustment to reasonably include the ability to rip up the flooring or

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upholstery.” J.A. 437 (citing United States v. Eldridge, 302 F.2d 463, 466 (4th Cir. 1962)).

We agree that the initial search inside the vehicle was based upon the valid consent of the

driver. But it is enough to simply assume that the driver could not consent to the more

invasive search under the carpet because that search was supported by the multiple bases

for probable cause.

Probable Cause

The Fourth Amendment requires law enforcement officers to “secure a warrant

before conducting a search.” Maryland v. Dyson, 527 U.S. 465, 466 (1999) (citing

California v. Carney, 471 U.S. 386, 390–391 (1985)). However, one of the well

established exceptions to this requirement is the automobile exception, which justifies

warrantless searches of vehicles without a “separate exigency requirement.” Id. at 467.

The automobile exception is premised on the two justifications of mobility and the reduced

expectation of privacy that owners have in vehicles because vehicles on the road are heavily

regulated. See United States v. Kelly, 592 F.3d 586, 590 (4th Cir. 2010) (“There are two

justifications for the automobile exception. . . . ‘Besides the element of mobility, less

rigorous warrant requirements govern because the expectation of privacy with respect to

one’s automobile is significantly less than that relating to one’s home or office.”) (first

quoting South Dakota v. Opperman, 428 U.S. 364, 367 (1976); and then citing Carney, 471

U.S. at 392 (“[T]he pervasive schemes of regulation, which necessarily lead to reduced

expectations of privacy, and the exigencies attendant to ready mobility justify searches

without prior recourse to the authority of a magistrate so long as the overriding standard of

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probable cause is met.”))). Therefore, pursuant to the automobile exception, probable

cause to believe that a vehicle contains contraband justifies “a warrantless search.” United

States v. Caldwell, 7 F.4th 191, 200 (4th Cir. 2021). This is so “even though a warrant has

not been actually obtained.” Dyson, 527 U.S. at 467 (emphasis in original) (quoting United

States v. Ross, 456 U.S. 798, 809 (1982)). And “where the automobile exception applies,

‘it justifies the search of every part of the vehicle.’” Caldwell, 7 F.4th at 200 (quoting

Ross, 456 U.S. at 825).

In Chambers v. Maroney, the Supreme Court outlined the rationale for the

automobile exception as mobility because “the occupants are alerted, and the car’s contents

may never be found again if a warrant must be obtained. Hence an immediate search is

constitutionally permissible.” 399 U.S. 42, 51 (1970). The Court reasoned that “[f]or

constitutional purposes, [there is] no difference between on the one hand seizing and

holding a car before presenting the probable cause issue to a magistrate and on the other

hand carrying out an immediate search without a warrant[, so] [g]iven probable cause to

search, either course is reasonable under the Fourth Amendment.” Id. at 52.

Although initially premised only on ready mobility, in subsequent cases, the

Supreme Court highlighted an additional justification for the automobile exception: that

individuals experience a “reduced expectation of privacy in an automobile, owing to its

pervasive regulation.” Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (citing Carney,

471 U.S. at 391–92). In Collins v. Virginia, 584 U.S. 586, 591 (2018), the Court again

acknowledged that, in addition to ready mobility, which is the “core justification,” the

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automobile exception is also premised on the pervasive regulation that vehicles already

face while on the roads. Id.

The district court determined that the search was justified by the automobile

exception because probable cause supported the “the entire search, including the search

under the carpeting” and opening the floor traps to search inside. J.A. 438. The court

reasoned that Deputy Johnson’s observations of the Nissan Sentra, the bill of lading, and

the car’s registration established probable cause to allow Deputy Johnson to search the

inside of the vehicle. The court concluded that Officer Johnson’s search under the carpet

was further supported by probable cause that the vehicle was associated with drug

trafficking activity based on the smell of fresh paint when he opened the car door, the

additional tooling to the bolts securing the front seats, and the depth check indicating

unaccounted for space, which all indicated modifications had been made to install a floor

trap in the vehicle.

Here, Deputy Johnson knew, based on his visual inspection of the underside of the

car, that the undercoating of the Nissan Sentra had a patchy paint job, a bent heat shield,

and tooling marks to the bolts, all of which indicated to him that the car had been modified

to include a floor trap. Further, there were discrepancies on the bill of lading for the Nissan

Sentra, including that there were three people involved rather than merely the sender and

receiver of the vehicle, that the phone numbers associated with the sender and receiver

were both California phone numbers even though the car was being shipped to South

Carolina, and that the car was registered to the sender at a post office box address, which

was a different address than the shipping address associated with the vehicle’s sender listed

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on the bill of lading. Bolstering these observations was Deputy Johnson’s 23 years of

experience: “I know that [Nissan Sentras are] . . . commonly used . . . [to install] floor

trap[s] by drug trafficking organizations. I have seen that many occasions, that is a common

vehicle.” J.A. 161. Therefore, to an objectively reasonable police officer, these facts

reflected “‘a fair probability’ ‘or substantial chance [that evidence of drug trafficking

would be discovered in the vehicle].’” Mayberry, 125 F.4th at 143 (quoting Gates, 462

U.S. at 238, 243 n.13). Therefore, the search of the car was justified by the automobile

exception.

Moreover, Deputy Johnson’s more thorough search of the vehicle by pulling up the

carpet, lifting up the seats, and opening the floor traps was likewise justified by probable

cause, including the smell of fresh paint that Deputy Johnson encountered when he opened

the car door, the additional tooling marks that he witnessed on the driver and passenger

seat bolts, and the depth check that he conducted, which all indicated to him that a floor

trap had been installed. These indications were further supported by the K-9 alert to the

presence of narcotics, which we have acknowledged is sufficient to establish probable

cause. See United States v. Green, 740 F.3d 275, 283 (4th Cir. 2014) (concluding that a

positive dog sniff established probable cause to search a vehicle during a traffic stop).

Accordingly, because these facts provided a basis for Deputy Johnson to conclude

that there was a probability that evidence of drug trafficking would be discovered in the

vehicle, we conclude that the search of the vehicle was supported by probable cause, and

therefore, justified by the automobile exception.

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Appellant argues that the Mississippi GPS warrant is unsupported by probable cause

because the foundation for such warrant is the allegedly illegal search of the Nissan Sentra.

With respect to the Mississippi GPS Warrant, the district court determined that it

was reasonable for the Mississippi state court judge to conclude that there was probable

cause for the GPS warrant based on evidence obtained during the search of the Nissan

Sentra, including the floor trap and the positive K-9 alert to the presence of narcotics; Agent

Cooley’s knowledge that “drug traffickers and bulk cash money couriers are utilizing car

haulers” to “allow them to distance themselves from the vehicles”; and Appellant’s

criminal history. J.A. 442.

Because we have already determined that the search of the Nissan Sentra was

supported by probable cause, and because we agree that the Mississippi magistrate judge

had a substantial basis for finding probable cause, we conclude that the Mississippi GPS

warrant was likewise valid.

c.

Staleness

Appellant relies on United States v. Doyle, to argue that the Government should not

have been able to use eight month old evidence of Appellant’s drug trafficking -- that is,

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the July 2018 package interception -- to support the probable cause basis for the South

Carolina GPS Warrant. 650 F.3d 460, 474 (4th Cir. 2011).

We agree that probable cause includes a temporal requirement. “A valid search

warrant may issue only upon allegations of ‘facts so closely related to the time of issue of

the warrant as to justify a finding of probable cause at that time[, and] [w]hether the proof

meets this test must be determined by the circumstances of each case.’” United States v.

Rhynes, 196 F.3d 207, 234 (4th Cir. 1999), opinion vacated in part on other grounds on

reh’g en banc, 218 F.3d 310 (4th Cir. 2000), and on reh’g in part, 218 F.3d 310 (4th Cir.

2000) (quoting Sgro v. United States, 287 U.S. 206, 210–11 (1932)). But “the existence of

probable cause cannot be determined ‘by simply counting the number of days between the

occurrence of the facts supplied and the issuance of the affidavit.’” United States v.

Richardson, 607 F.3d 357, 370 (4th Cir. 2010) (quoting United States v. McCall, 740 F.2d

1331, 1336 (4th Cir. 1984) (citation omitted)). Rather, we must “look to all the facts and

circumstances of the case, including the nature of the unlawful activity alleged, the length

of the activity, and the nature of the property to be seized.” Id. (quoting McCall, 740 F.2d

at 1336). “[P]robable cause [may] . . . exist despite substantial gaps between the

observation of the evidence . . . and the issuance of a search warrant.” McCall, 740 F.2d

at 1336.

Therefore, time is only one consideration. And where, as here, the alleged criminal

activity is continuing in nature, that single factor may be overcome by other considerations.

In United States v. Rhynes, we determined that two year old money laundering activity

related to drug trafficking activity was not stale enough to suppress because the drug

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operation was a long term venture. 196 F.3d at 234. See also United States v. Zayas-Diaz,

95 F.3d 105, 116 (1st Cir. 1996) (concluding that evidence of drug trafficking may remain

in a location for weeks or months at a time). Likewise, in United States v. Farmer, in the

context of a nine month span of time between alleged criminal activity and the issuance of

a warrant based on that activity, we held that “criminal activities of a protracted and

continuous nature” or “ongoing” activities “suggested that probable cause was not

diminished solely by the passage of time.” 370 F.3d 435, 439 (4th Cir. 2004) (cleaned up).

Appellant argues that by the time the Government utilized evidence relating to the

July 2018 USPIS package interception to support probable cause for obtaining the South

Carolina GPS Warrant in March 2019, the evidence was too stale. But this argument seeks

to merely count “the number of days between the occurrence of the facts supplied and the

issuance of the affidavit” as a means to challenge the validity of the South Carolina GPS

Warrant. McCall, 740 F.2d at 1336.

The Government responds that the 2018 USPIS investigation was not stale because

it was unlikely that Appellant had abandoned his drug trafficking activities between July

2018 and March 2019. This was so, according to the Government, because drug trafficking

is an “ongoing enterprise rather than an isolated incident.” Gov’t’s Resp. Br. at 23 (first

citing United States v. Bosyk, 933 F.3d 319, 330 (4th Cir. 2019) (finding that courts have

sustained warrants “issued many months, and even years after the events that gave rise to

probable cause” in child pornography cases); then citing Farmer, 370 F.3d at 439–40; and

then citing Rhynes, 196 F.3d at 234).

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Here, the facts and circumstances do not support finding the evidence from the

package intercepted in July 2018 as too stale to be used to support the existence of probable

cause for the South Carolina GPS Warrant in March 2019. The alleged criminal activity

was a drug operation, which we have acknowledged is an ongoing enterprise. See Rhynes,

218 F.3d at 310. And, unlike in Doyle, where there was “no indication as to when the

events supposedly creating probable cause to search took place,” here, the affidavit

submitted in support of the South Carolina GPS Warrant stated that the contested

interception of the package occurred in July 2018, eight months prior to March 2019, when

the Government applied for the South Carolina GPS warrant. 650 F.3d at 474. Therefore,

we hold that in an ongoing criminal enterprise of drug trafficking, the use of eight month

old evidence in support of a warrant does not require suppression.

Appellant next challenges the South Carolina GPS warrant as unsupported by

probable cause. Appellant’s argument is based upon his challenges to the probable cause

bases for the earlier Mississippi Nissan Sentra search and the Mississippi GPS Warrant.

Appellant reasons that the South Carolina GPS Warrant is invalid as fruit of the poisonous

tree because it was based, in part, on the allegedly unlawful Mississippi Nissan Sentra

search and the Mississippi GPS Warrant. Therefore, Appellant argues that even if the

evidence from the July 2018 investigation is not stale, it is insufficient alone to support a

finding of probable cause.

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Here, the district court did not err in determining that the South Carolina GPS

Warrant was supported by probable cause. We have already determined that the

Mississippi Nissan search was supported by probable cause, that there was a substantial

basis to support the Mississippi GPS Warrant, and that the use of the eight month old

evidence does not warrant suppression. Therefore, we affirm the district court’s

determination that the South Carolina GPS Warrant was supported by probable cause.8

d.

Appellant argues that the district court erred in failing to suppress the Ping Warrants

as fruit of the poisonous tree because they are “derivative of” the allegedly unconstitutional

South Carolina GPS Warrant, and because the warrants are “so closely intertwined” that

finding the South Carolina GPS Warrant invalid would require our invalidation of the Ping

Warrants as well. Appellant’s Opening Br. at 51. Appellant also argues that the Ping

Warrants were not sufficiently supported by indicators of probable cause. Yet, Appellant’s

brief contradicts his own argument by acknowledging that the affidavits supporting the

Ping Warrants “detail[] the investigators[’] tracking of the [Nissan Sentra] and subsequent

physical surveillance of [Appellant] and [his alleged co-conspirator girlfriend].” Id. at 51.

8 The Government urges that, even if the warrant were unsupported by probable cause, suppression would be inappropriate pursuant to the good faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897, 920–23 (1984). However, because we determine that the South Carolina GPS warrant was valid, we need not address the good faith exception.

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Nevertheless, the record makes clear that in addition to information derived from

the South Carolina GPS Warrant, the Ping Warrants were supported by extensive evidence

of monitoring by the USPIS of the packages being sent to and from Appellant’s known

addresses, physical monitoring of the movements of Appellant and his co-conspirator

girlfriend, physical monitoring of the packages the pair sent, interception of additional

packages and the contents thereof, and analysis of Appellant’s historical flight data.

Because we have already confirmed the validity of the South Carolina GPS Warrant,

we need not address Appellant’s fruit of the poisonous tree argument further.

Therefore, we hold that the Ping warrants were supported by probable cause, as

evidenced by the extensive evidence outlined in each warrant application.

Wiretap Act

Pursuant to the Wiretap Act, 18 U.S.C. §§ 2510 et seq., wire and oral

communications are subject to statutory suppression when the communications are

obtained in a manner “except as specifically provided for in the statute.” 18 U.S.C.

§§ 2511, 2518(10)(a) (“Any aggrieved person . . . may move to suppress the contents of

any wire or oral communication. . . . ”). In United States v. Smith, we acknowledged the

so-called “necessity requirement,” which requires the Government to “establish the need

for a wiretap by showing either (i) that normal investigative procedures have been tried

and failed, or (ii) that normal investigative procedures, though not yet tried, reasonably

appear to be either unlikely to succeed if tried or too dangerous.” 31 F.3d 1294, 1298 n.2

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(4th Cir. 1994) (citation and internal quotation marks omitted) (emphases in original)

(citing 18 U.S.C. §§ 2518(1)(c) and (3)(c)).

Appellant argues that the district court erred in failing to treat the Ping Warrants as

a Wiretap Act violation “because the great invasion of privacy that results from a . . . [P]ing

[W]arrant is akin to that of a wiretap.” Appellant’s Opening Br. at 44. Appellant urges

that we should impose the Wiretap Act’s necessity requirement here and suppress the

evidence derived from the Ping Warrants based upon the Government’s failure to comply

with such requirement. The Government responds that no wiretap actually occurred in this

case since “[t]he GPS warrants and [Ping Warrants] provided agents geo-location data for

the Nissan Sentra and for the target telephones—not content information.” Gov’t’s Resp.

Br. at 34. Therefore, the Government argues that the Wiretap Act does not apply in this

case.

The district court determined that the Wiretap Act did not apply because the

“contents” of Appellant’s wire communications were not “intercepted.” J.A. 495–96

(emphasis supplied). Additionally, the district court declined Appellant’s request to

construe the Wiretap Act to apply simply due to the “real-time” nature of the tracking

absent any authority in support of such a construction. Id. at 496–97. Indeed, at the

suppression hearing, Appellant candidly acknowledged that “there is no case” to support

his position. J.A. 376.

The district court further concluded that Appellant’s arguments were “unavailing”

inasmuch as the Supreme Court in Carpenter v. United States “clearly recognized the same

considerations.” J.A. 461, 497 (quoting Carpenter v. United States, 585 U.S. 296, 311–13

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(2018)). That is, Carpenter acknowledged “‘time-stamped data provides an intimate

window into a person’s life, revealing not only his particular movements, but through them

his familial, political, professional, religious, and sexual associations’” and “‘achieves near

perfect surveillance, as if it had attached an ankle monitor to the phone’s user.’” Id.

(quoting Carpenter, 585 U.S. at 311–12). Yet, the Court in Carpenter “determined that

only probable cause was required to support a warrant” authorizing the acquisition of

historical cell site data. Id. (quoting Carpenter, 585 U.S. at 316).

On appeal, Appellant cites two cases in which improperly intercepted

communications were suppressed. See Appellant’s Opening Br. at 45–47 (first citing

United States v. Giordano, 416 U.S. 505, 509 (1974); and then citing United States v. Rice,

478 F.3d 704, 706 (6th Cir. 2007)). However, unlike in the cases cited by Appellant, here,

no communications were intercepted. And that makes all the difference.

The district court did not err in determining that the Wiretap Act did not apply in

Appellant’s case. The Ping Warrants did not authorize a search of the contents of

Appellant’s communications. They authorized only the acquisition of GPS data and the

acquisition of real time tracking data. As the district court correctly observed, GPS data is

neither a wire nor oral communication. Therefore, the Wiretap Act is inapplicable. See

e.g., United States v. Barajas, 710 F.3d 1102, 1110 n.5 (10th Cir. 2013) (“GPS data is

neither a wire nor oral communication, thus Title III suppression [pursuant to the Wiretap

Act] does not apply.”).

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The Wiretap Act does not apply to the Ping Warrants because “contents” of

Appellant’s wire communications were not “intercepted.” 18 U.S.C. § 2518(10)(a).

Therefore, we affirm the district court.

Rule 41 Violations

Finally, we consider whether the Government’s repeated failures to return warrants

in a timely manner requires suppression.

Federal Rule of Criminal Procedure 41(f)(2)(B) states, “[w]ithin 10 days after the

use of the tracking device has ended, the officer executing the warrant must return it to the

judge designated in the warrant.” Fed. R. Crim. P. 41(f)(2)(B). Here, the returns all

occurred well after the allotted time. The Mississippi GPS Warrant return was not made

until “some time later but not within the ordered time frame.” J.A. 444. The South

Carolina GPS Warrant return was not made until January 21, 2020, nine months after it

was due. And the Ping Warrant returns regarding the tracking authorized on March 21,

2019, (TT-1), August 29, 2019, and September 27, 2019, (TT-2), and September 9, 2019,

(TT-3), were not made until January 28 and 29, 2021, well over a year past due.

Appellant argues that the late filed returns for the South Carolina GPS Warrant and

the Ping Warrants merit suppression. Appellant reiterates the same argument on appeal as

he made below, that the “lackadaisical record keeping” on the part of the Government

prejudiced Appellant, and, therefore, required suppression. Appellant’s Opening Br. at 43.

The Government counters that we should affirm the district court’s determination that

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suppression was not required because Appellant fails to demonstrate any prejudice by the

late returns.

Regarding the late filed returns for the South Carolina GPS warrant and the Ping

Warrants, the district court noted Appellant’s argument that the lateness “prejudiced him

and [was] the direct result of deliberate disregard of the Rule by the government.” J.A.

465, 471–72, 474. However, the district court highlighted that Appellant’s argument was

devoid of any specific explanation as to how he was prejudiced or why he believed that the

Government acted deliberately and intentionally in filing the late returns. The district court

reiterated, with respect to each warrant, that it credited the officers’ testimony that their

failure to timely file the returns was merely due to administrative oversight. Therefore, the

district court held that, although it “understands and appreciates the frustration of counsel

in the timing of the return[s], absent a particularized showing of prejudice to the defendant,

it would be nonsensical for the court to order suppression of . . . warrant[s] . . . supported

by probable cause solely based on [] non-constitutional violation[s] regarding the

timeliness of the filing of general return[s].” J.A. 456, 465, 480. And the district court

determined that Appellant experienced no discovery related prejudice because Appellant

failed to allege a particularized showing of prejudice and because Appellant’s counsel in

fact received the warrant returns as evidence prior to the time trial was scheduled. In

reaching this conclusion, the district court analogized to the Brady v. Maryland context,

which, unlike ministerial Rule 41 violations, does implicate a defendant’s constitutional

rights and requires the disclosure of evidence before trial, which was done here.

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In United States v. Simons, we acknowledged “two categories of Rule 41 violations:

those involving constitutional violations, and all others,” including ministerial violations.

206 F.3d 392, 403 (4th Cir. 2000) (citing United States v. Smith, 914 F.2d 565, 568 (4th

Cir. 1990) (labeling as “ministerial” appellant’s claimed error that the government had not

returned the warrant to the magistrate judge but determining that suppression was not

warranted because appellant failed to demonstrate prejudice)). “Non-constitutional

violations of Rule 41 warrant suppression only when the defendant is prejudiced by the

violation, see Smith, 914 F.2d at 568; [United States v. Wyder, 674 F.2d 224, 226 (4th Cir.

1982)], or when there is evidence of intentional and deliberate disregard of a provision in

the Rule[.]” Simons, 206 F.3d at 403.(citations and internal quotation marks omitted).

Because Appellant makes only a conclusory allegation that he was prejudiced on

appeal without any showing of actual prejudice, we affirm the district court. Appellant

experienced no discovery related prejudice because his counsel received the relevant

information prior to trial.

That being said, we are dismayed by the Government’s utter and repeated disregard

for the procedural requirements of Rule 41. The Government failed to file a timely warrant

return not once but five times. And the delays were not just a matter of days. Under some

circumstances, one might wonder whether so many extensive delays are merely an

“administrative oversight.” J.A. 452, 465, 471–72, 474, 479 (acknowledging that the agent

testified that the late returns were due to administrative oversight).

Nonetheless, we are constrained to affirm the district court’s holding that Appellant

failed to establish an intentional and deliberate disregard for Rule 41, given that it is

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undergirded by credibility findings in favor of the officers’ testimony that the late filed

returns were the product of administrative oversight. See generally J.A. 452, 457, 459,

465, 472, 474, 479 (finding the testimony to be credible). But, even taking the Government

at its word, this case reveals substantial carelessness on the part of the Government. We

expect better.

IV.

For the foregoing reasons, we affirm the ruling of the district court.

AFFIRMED

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THACKER, Circuit Judge, concurring:

I write separately to note my discomfort with the automobile exception in general

and as applied in this case, in particular. The legal fiction inherent in the application of the

automobile exception is particularly diminished in this case. According to its “core”

underlying justification, the automobile exception serves as a solution to the exigency of

occupants being alerted and cars being readily mobile. The exception aims to avoid the

loss of evidence. However, in this case, the car was not being driven, no occupant or owner

was alerted, and no evidence was at risk of being lost by a slight delay in obtaining a

warrant. In fact, the record supports the opposite conclusion. The driver of the car hauler

waited while the vehicle was searched on the side of the road, transported the vehicle to

the law enforcement automobile shop, removed it from the car hauler for a more thorough

search, and waited for law enforcement to obtain and install the Mississippi GPS Warrant

before loading the car back onto the car hauler and continuing to South Carolina.

Yet, according to the applicable precedent, these critical facts are not important. It

matters not whether a vehicle is actually in use “on the highways”; rather, a vehicle need

only be “readily capable of such use rather than, say, elevated on blocks.” United States v.

Davis, 997 F.3d 191, 201 n.8 (4th Cir. 2021) (cleaned up) (quoting California v. Carney,

471 U.S. 386, 392–93, 394 n.3 (1985)).

Nor is the presence of the occupant or owner of a vehicle a requirement for the

automobile exception to apply. Supreme Court precedent, as well as our own, dictate that

a later in time warrantless search that occurs after a vehicle has been immobilized or

impounded -- that is, even though the occupants were not present to move the vehicle -- is

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permissible so long as the search is still justified by probable cause. See Michigan v.

Thomas, 458 U.S. 259, 261 (1982) (upholding a roadside vehicle inventory search where

the driver was no longer present pursuant to the automobile exception); Florida v. Meyers,

466 U.S. 380, 382 (1984) (upholding a warrantless search of a vehicle that occurred eight

hours after the initial roadside search and after “the element of mobility was removed”

because the automobile had been impounded). See also United States v. Caldwell, 7 F.4th

191, 200 (4th Cir. 2021) (upholding -- pursuant to the automobile exception -- the search

of a vehicle thirteen days after impoundment where the vehicle needed to be jump started

to access the trunk); United States v. Gastiaburo, 16 F.3d 582, 586 (4th Cir. 1994) (stating

“the fact that impoundment may have made it virtually impossible for anyone to drive the

car away or to tamper with its contents is irrelevant to the constitutionality of a warrantless

search”). The Supreme Court has held “the justification to conduct such a warrantless

search does not vanish once the car has been immobilized; nor does it depend upon a

reviewing court’s assessment of the likelihood in each particular case that the car would

have been driven away, or that its contents would have been tampered with, during the

period required for the police to obtain a warrant.” Michigan, 458 U.S. at 261.

Moreover, the Supreme Court has established, and we have acknowledged, that the

automobile exception is also partially premised upon pervasive regulation of vehicles,

allowing for “less rigorous warrant requirements [to] govern [vehicles] because the

expectation of privacy with respect to one’s automobile is significantly less than that

relating to one’s home or office.” Kelly, 592 F.3d at 590 (quoting South Dakota v.

Opperman, 428 U.S. 364, 367 (1976)). In my view, such a broad justification pushes us

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over any slippery slope of privacy protection and right into the ditch, serving only to strip

away from all persons travelling in vehicles on roads the “require[ment that] the police []

obtain a warrant before conducting a search.” Id. The result of this broadly applied legal

fiction is that officers presumably need not ever apply for warrants to search vehicles so

long as probable cause exists. As evidenced by the present case, the legal fiction of this

overbroad construction of the automobile exception “provide[s] [] police entitlement [to

search], [even though] it is anathema to the Fourth Amendment to permit a warrantless

search on th[e]” basis of police entitlement. Arizona v. Gant, 556 U.S. 332, 347 (2009);

United States v. Davis, 997 F.3d 191, 202–03 (4th Cir. 2021) (recognizing the same).

It is apparent that -- although the rule was originally rooted in the justifications of

occupants being alerted combined with the ready mobility of vehicles, which could result

in a loss of evidence as well as the pervasive regulation of vehicles -- the automobile

exception has since become unrooted from these justifications. We have recognized as

much. See Caldwell, 7 F.4th at 201 n.6 (4th Cir. 2021) (noting that Gant, 556 U.S. at 346–

47, “narrowed certain exceptions to the warrant requirement in order to keep the exceptions

rooted in their justifications[,] . . . [so i]t is therefore [also] conceivable that the Supreme

Court could someday limit the current reach of the automobile exception.”). I hope so. In

the meantime, “[w]e must simply apply [the Supreme Court’s] commands” because “it

remains the Supreme Court’s ‘prerogative alone to overrule one of its precedents.’” Payne

v. Taslimi, 998 F.3d 648, 654 (4th Cir. 2021) (quoting State Oil Co. v. Khan, 522 U.S. 3,

20 (1997)).