Page 38 - January February 2020 TPJ

mattress in the bedroom, it remained unlocked, In early November, the U.S. Supreme Court heard oral
accessible, and loaded. Moreover, when the police burst argument in the case of Kansas v. Glover, No. 18-556,
into the hotel room, Johnson disclosed the location of which presented the question of whether reasonable
the “dope” and the gun in the same breath. Later, in his suspicion exists for a police officer to pull over a
phone calls from jail, Johnson lamented that he had not vehicle merely because its registered owner has a
removed the gun and deposited it at his grandmother’s suspended driver’s license, even if the officer is unsure
house. Taken together, this evidence clearly establishes whether that owner is driving? Once the opinion
that Johnson knowingly possessed the gun in comes out, expected sometime in 2020, a report will
furtherance of drug trafficking—a far cry from the appear in this digest.
“unloaded antique[ ] mounted on the wall” or the
“locked and unloaded” lawfully-possessed hunting rifle ********************************************
contemplated in Ceballos-Torres. *********************

Lastly, Johnson challenges the prosecutor’s statement WARRANT, CELL PHONE DATA, GOOD FAITH
during closing argument that Detective Fleischer had no EXCEPTION.
reason to lie about Johnson’s admitting there was heroin
Armed with a court order but no warrant, FBI agents
in the fridge and a gun under the mattress.2 Johnson
obtained historical cell-site location information
contends the district court erred in failing to intervene
during the argument, depriving him of a fair trial. (“CSLI”) for the phone of a suspected serial bank
robber, Eric Beverly. Before the government could use
Because Johnson did not object to the prosecutor’s
that information at trial (to show that Beverly’s phone
statement, we again review for plain error. Generally, a
was at or near the banks at the time they were robbed)
prosecutor cannot bolster a police officer’s credibility
the Supreme Court held in Carpenter v. United States
by appealing to his authority as a police officer. On the
other hand, a prosecutor may speak to a law that if the government wants CSLI it needs a valid
search warrant. 138 S. Ct. 2206, 2221 (2018). So, on the
enforcement witness’s credibility at closing if the
same day Carpenter was decided, federal prosecutors
statement is supported by prior evidence. And even if
applied for—and got—a search warrant for the CSLI
statements of that nature extend past the evidence, we
they already had (plus quite a bit more). Beverly moved
have sometimes allowed them where they amount
merely to proportionate, common-sense observations to suppress the CSLI and other related evidence,
claiming the warrant was obtained in bad faith. The
about a witness’s lack of motive to lie. Admittedly, the
district court agreed, suppressing the CSLI and
prosecutor’s suggestion that Detective Fleischer had no
declaring the court order and warrant void. The
motive to lie was not simply a restatement of any prior
government appeals that order. Because the district
evidence. At the same time, however, the prosecutor
made the statement to rehabilitate Fleischer after court should have applied various strands of the good-
faith exception to the warrant requirement, we reverse.
defense counsel suggested repeatedly that Fleischer
I. In the summer of 2014, surveillance cameras across
fabricated his account of Johnson’s confession on the
the Houston area began capturing a string of armed bank
eve of trial. Ultimately, however, we need not decide
robberies. The robberies consistently involved a group
whether it was actual error for the district court to allow
the prosecutor’s statement, because any error was not of masked individuals, two or three of whom would
enter a bank, hold up the lobby, and empty the teller
“clear and obvious.” In sum, the district court did not
drawers—all in less than sixty seconds—before driving
plainly err by allowing the prosecutor to suggest that
off in a black Dodge Ram pickup with chrome nerf
Detective Fleischer had no reason to lie.
bars1 and two bullet holes in the back. Sometimes other
AFFIRMED. vehicles were also used, including a silver Infiniti SUV.
During the holdups, the robbers would communicate via
U.S. v. Johnson, No. 17-11452, Fifth Cir., 11/05/19. three-way cell phone calls. They never entered the bank
vaults, but instead took money only from teller drawers.
REASONABLE SUSPICION – Supreme Court opinion Still, the robbers managed to steal as much as
pending $20,000–$30,000 from some of the banks, all of which
were FDIC insured. The government finally caught a

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