United States v. Mario Baker

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6624

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARIO N. BAKER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:08-cr-00088-REP-1; 3:10-cv-00579-REP)

Argued: May 14, 2013 Decided: June 13, 2013

Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Gregory and Judge Keenan joined.

ARGUED: John W. Akin, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant. Michael F. Murray,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Neal L. Walters, Benjamin P. Kyber, Third
Year Law Student, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Alexandria, Virginia; Richard D. Cooke,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
WILKINSON, Circuit Judge:

Defendant Mario Nathaniel Baker was convicted of multiple

federal firearm and drug offenses based on evidence that police

officers uncovered while searching his vehicle during a traffic

stop. Baker’s counsel never challenged the constitutionality of

the search, either through a suppression motion or on direct

appeal. After his conviction became final, Baker filed a motion

under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct

his sentence partly on the ground that his counsel had been

unconstitutionally ineffective in failing to challenge the

search on direct appeal under Arizona v. Gant, 556 U.S. 332

(2009), which the Supreme Court decided while his appeal was

still pending. The district court rejected this claim, and we

affirm for the reasons stated herein.

I.

A.

We take the facts pertinent to this appeal from the

evidence presented at Baker’s trial, construed in the light most

favorable to the government. See Bereano v. United States, 706

F.3d 568, 571 n.5 (4th Cir. 2013).

On March 3, 2008, Shawn Nelson, an officer with the Henrico

County, Virginia, Police Department, stopped a vehicle that had

a broken taillight and an expired license plate. Baker was

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driving the vehicle, and Dashawn Brown occupied the front

passenger seat. On checking Baker’s driver’s license against

state records, Nelson learned that Baker was the subject of an

outstanding federal arrest warrant. While verifying the

warrant, Nelson called for backup. Once additional officers

arrived, Nelson arrested Baker and handed him over to one of the

other officers, who searched him and, finding no contraband,

secured him in a police car.

While the other officer was dealing with Baker, Nelson

turned his attention to Brown, asking him to exit the vehicle.

Brown did so but then began to walk away. Nelson ordered Brown

to put his hands on the vehicle and started frisking him. When

Nelson felt a handgun in Brown’s pocket, Brown attempted to

reenter the vehicle -- claiming at the time that he wanted to

retrieve his cellphone, which was on the passenger-side

floorboard. Nelson struggled with Brown, wrestled him to the

ground, and arrested him for possessing the handgun. He then

searched Brown incident to the arrest, finding 0.90 grams of

heroin, 0.40 grams of crack cocaine, $980 in cash, and a small

digital scale on his person.

After securing Brown in a police car, Nelson searched the

passenger compartment of Baker’s vehicle, starting with the

center console, where he found 20.6 grams of heroin, 0.24 grams

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of crack cocaine, 12.2 grams of methadone, and a burnt marijuana

cigarette. He also found another handgun in the glove box.

B.

Based on the evidence found during the search of his

vehicle, Baker was indicted for various federal firearm and drug

offenses. See 18 U.S.C. §§ 922(g)(1), 924(c); 21 U.S.C. § 841.

He was also charged with an additional firearm count stemming

from a previous run-in with the police, in 2007. Although

Baker’s lawyer moved (unsuccessfully) to sever this additional

count, he never filed a suppression motion challenging the

search of Baker’s vehicle. Baker was convicted by a jury of all

counts and was sentenced by the trial court to 185 months’

imprisonment.

Baker appealed his convictions and sentence to this court,

with his lawyer filing an opening brief on March 16, 2009. On

April 21, 2009, the day before the government filed its response

brief, the Supreme Court decided Arizona v. Gant, which held

that, under the Fourth Amendment, the “[p]olice may search a

vehicle incident to a recent occupant’s arrest only if the

arrestee is within reaching distance of the passenger

compartment at the time of the search or it is reasonable to

believe the vehicle contains evidence of the offense of arrest.”

556 U.S. 332, 351 (2009). We affirmed Baker’s convictions and

sentence on August 7, 2009. See United States v. Baker, 340 F.

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App’x 145 (4th Cir. 2009), cert. denied, 130 S. Ct. 1548 (2010).

At no point between when the Supreme Court decided Gant and when

this court decided Baker’s appeal did Baker’s lawyer argue that

the search of Baker’s vehicle violated the Fourth Amendment

under Gant.

C.

Proceeding pro se, Baker subsequently filed a motion to

vacate, set aside, or correct his sentence under 28 U.S.C.

§ 2255. His motion asserted four claims for relief, all of

which the district court rejected. See United States v. Baker,

No. 3:08cr88, 2012 WL 620240 (E.D. Va. Feb. 24, 2012).

Specifically, as relevant to this appeal, the district court

found that Baker’s counsel had not been unconstitutionally

ineffective in failing to challenge the search of Baker’s

vehicle under Gant on direct appeal “[b]ecause the evidence

found as a result of the search . . . still would be admissible

under the good faith exception to the Fourth Amendment’s

exclusionary rule,” meaning that Baker could not “show that

counsel’s failure to argue Gant on appeal prejudiced him.” Id.

at *2 (footnote omitted).

The district court denied a certificate of appealability

for all four of Baker’s claims. See id. at *3; 28 U.S.C.

§ 2253(c). While agreeing with the district court that three of

the claims did not merit our review, we granted a partial

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certificate of appealability to consider the question whether

Baker’s lawyer was ineffective in failing to raise a Gant

argument on direct appeal.

II.

Warrantless searches “are per se unreasonable under the

Fourth Amendment -- subject to only a few specifically

established and well-delineated exceptions.” Katz v. United

States, 389 U.S. 347, 357 (1967) (footnote omitted). Arizona v.

Gant, 556 U.S. 332 (2009), addressed when the exception to the

Fourth Amendment’s warrant requirement for searches incident to

a lawful arrest justifies a search of the passenger compartment

of the vehicle in which an arrestee is traveling. As a general

matter, a search incident to a lawful arrest may extend only to

“the arrestee’s person and the area ‘within his immediate

control’ -- construing that phrase to mean the area from within

which he might gain possession of a weapon or destructible

evidence.” Chimel v. California, 395 U.S. 752, 763 (1969).

Before Gant, the Supreme Court had interpreted this rule in the

context of vehicle searches to mean that “when a policeman has

made a lawful custodial arrest of the occupant of an automobile,

he may, as a contemporaneous incident of that arrest, search the

passenger compartment of the automobile” as well as “any

containers found within the passenger compartment.” New York v.

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Belton, 453 U.S. 454, 460 (1981) (footnote omitted); see also

Thornton v. United States, 541 U.S. 615 (2004).

The federal courts of appeals tended to construe the

Court’s pronouncement in Belton capaciously. Although a few

circuits cabined Belton’s holding to permit a search of a

vehicle incident to the arrest of an occupant only when the

arrestee could actually reach the vehicle’s passenger

compartment, most espoused a broader interpretation, according

to which police officers could search the vehicle regardless of

the arrestee’s location at the time of the search. See Gant,

556 U.S. at 341-43 & nn.2-3 (collecting cases). This court

adopted the broad reading, upholding, for instance, the search

of a vehicle as a search incident to an arrest where the

arrestee had been handcuffed and removed from the vehicle when

the search occurred. See United States v. Milton, 52 F.3d 78,

80 (4th Cir. 1995), overruling recognized by United States v.

Wilks, 647 F.3d 520, 522 (4th Cir. 2011).

Without purporting to overrule Belton and its progeny, Gant

rejected the lower courts’ capacious reading of that decision,

making clear that the exception for searches incident to an

arrest authorizes vehicle searches only in two specific

circumstances. The first circumstance is “when the arrestee is

unsecured and within reaching distance of the passenger

compartment at the time of the search.” Gant, 556 U.S. at 343.

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The second is “when it is ‘reasonable to believe evidence

relevant to the crime of arrest might be found in the vehicle.’”

Id. (quoting Thornton, 541 U.S. at 632 (Scalia, J., concurring

in the judgment)). “When these justifications are absent,” the

Court concluded, “a search of an arrestee’s vehicle will be

unreasonable unless police obtain a warrant or show that another

exception to the warrant requirement applies.” Id. at 351.

It is important to recognize those aspects of Fourth

Amendment doctrine that Gant did not change. The decision

addressed only the exception to the warrant requirement for

searches incident to a lawful arrest, as applied to vehicle

searches. It left unaltered other exceptions that might

authorize the police to search a vehicle without a warrant even

when an arrestee is secured beyond reaching distance of the

passenger compartment and it is unreasonable to expect to find

any evidence of the crime of arrest in the vehicle. See id. at

346-47. The one most relevant to this appeal is the so-called

automobile exception, which permits a warrantless search of a

vehicle when there is probable cause to believe the vehicle

contains contraband or other evidence of criminal activity. See

Carroll v. United States, 267 U.S. 132 (1925).

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 III.

Baker argues that his lawyer was unconstitutionally

ineffective in failing to challenge the search of his vehicle

under Gant on direct appeal. Once the Supreme Court decided

Gant, he contends, his lawyer should have argued to this court

that the decision rendered the search of his vehicle

unconstitutional, given that neither he nor Brown was within

reaching distance of the passenger compartment when Officer

Nelson searched the vehicle. * Had his lawyer made this argument,

Baker insists, the evidence obtained during the search would

likely have been excluded and all his convictions based on that

evidence would likely have been overturned.

To show a violation of the Sixth Amendment right to

effective assistance of counsel, a defendant must prove (1)

“that [his] counsel’s performance was deficient” and (2) “that

the deficient performance prejudiced the defense.” Strickland

v. Washington, 466 U.S. 668, 687 (1984). In evaluating a

district court’s rulings on each prong, we review its legal

conclusions de novo and its factual findings for clear error.

See United States v. Fulks, 683 F.3d 512, 516 (4th Cir. 2012).

*
Because of the other available grounds for disposing of
Baker’s appeal, we need not decide whether the search was
justified under Gant’s other rationale -- namely, that it was
reasonable to expect to find additional evidence of the crimes
for which Baker and Brown were arrested in the vehicle.

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For the following reasons, Baker has failed to make the

requisite showing under either prong of the Strickland standard.

A.

Regarding the first prong, a lawyer’s performance is

deficient when his representation falls “below an objective

standard of reasonableness,” as measured against “prevailing

professional norms.” Strickland, 466 U.S. at 688. “[T]he

reasonableness of counsel’s challenged conduct,” in turn, is

judged “on the facts of the particular case, viewed as of the

time of counsel’s conduct.” Id. at 690. To guard against

hindsight bias and unfair “second-guess[ing],” a defendant must

overcome “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.”

Id. at 689.

The range of reasonable professional assistance is just as

wide on direct appeal as it is at trial. In particular,

“[c]ounsel is not obligated to assert all nonfrivolous issues on

appeal, as ‘[t]here can hardly be any question about the

importance of having the appellate advocate examine the record

with a view to selecting the most promising issues for review.’”

Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc)

(quoting Jones v. Barnes, 463 U.S. 745, 752 (1983)). Indeed,

requiring counsel to raise every claim, or even a multiplicity

of claims, runs the risk of detracting from contentions that may

10
be truly meritorious. Appellate counsel accordingly enjoys a

“presumption that he decided which issues were most likely to

afford relief on appeal,” a presumption that a defendant can

rebut “only when ignored issues are clearly stronger than those

presented.” Id. (quoting Pruett v. Thompson, 996 F.2d 1560,

1568 (4th Cir. 1993); Smith v. Robbins, 528 U.S. 259, 288

(2000)).

Baker’s counsel claimed on direct appeal that the trial

court had erred in three respects: in denying Baker’s motion to

sever the charge stemming from his previous encounter with the

police, in denying his post-trial motion for a judgment of

acquittal, and in imposing an unreasonable sentence. According

to Baker, each of these issues was clearly weaker than an

argument under Gant would have been, since the latter would have

impugned the search of his vehicle, the evidence it uncovered,

and thus the sole basis for all but one of his convictions.

Baker incorrectly assumes, however, that the search of his

vehicle would necessarily be unconstitutional if it violated

Gant. In fact, even if the search exceeded the limits of the

exception to the warrant requirement for searches incident to a

lawful arrest, as delineated in Gant, it was still justified by

another, independent exception, such that Baker’s lawyer acted

reasonably in declining to challenge it.

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 As noted above, Gant addressed only the rule permitting

warrantless searches incident to a lawful arrest, as applied in

the context of vehicle searches, leaving unaltered other

exceptions to the warrant requirement that might be relevant in

that context. To illustrate the limits of its holding, the

Court in Gant expressly identified three such exceptions. See

556 U.S. at 346-47. Among them was the “automobile exception,”

according to which police officers may search a vehicle without

first obtaining a warrant if it “is readily mobile and probable

cause exists to believe it contains contraband” or evidence of

criminal activity. Pennsylvania v. Labron, 518 U.S. 938, 940

(1996) (per curiam); see also Maryland v. Dyson, 527 U.S. 465,

466-67 (1999) (per curiam). Note that, in contrast to Gant’s

rule, this exception permits police officers to search a vehicle

for evidence of any crime, not just the crime of arrest, but

only on a showing of probable cause rather than a mere

reasonable belief.

The Court in Gant emphasized that its decision in no way

affected the validity or scope of the automobile exception,

noting that “[i]f there is probable cause to believe a vehicle

contains evidence of criminal activity, United States v. Ross,

456 U.S. 798, 820-821 (1982), authorizes a search of any area of

the vehicle in which the evidence might be found.” Gant, 556

U.S. at 347. This court, in turn, similarly confirmed the

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continued viability of this exception in the wake of Gant,

holding that even though a warrantless vehicle search might have

exceeded the limits articulated in Gant, it was nevertheless

constitutional because it was supported by probable cause. See

United States v. Kellam, 568 F.3d 125, 136 n.15 (4th Cir. 2009).

So too here. After Officer Nelson found a gun, drugs, $980

in cash, and a digital scale on Brown’s person, he had probable

cause to search the passenger compartment of Baker’s vehicle.

Probable cause to search a vehicle exists when “reasonable

officers can conclude that what they see, in light of their

experience, supports an objective belief that contraband is in

the vehicle.” United States v. Ortiz, 669 F.3d 439, 446 (4th

Cir. 2012). This standard is satisfied when a police officer

lawfully searches a vehicle’s recent occupant and finds

contraband on his person. See United States v. Johnson, 383

F.3d 538, 545-46 (7th Cir. 2004) (“[A police officer’s]

discovery of a banned substance (drugs) on Johnson’s person

clearly provided him with probable cause to search the trunk of

the vehicle . . . since the officer had a reasonable basis for

believing that more drugs or other illegal contraband may have

been concealed inside.” (footnote omitted)).

Thus, having found drugs, as well as other items indicating

involvement in the drug trade, on Brown’s person, Nelson had

probable cause to search the passenger compartment of the

13
vehicle in which Brown had just been sitting for additional

contraband. And if there were any doubt that the drugs and

other items alone justified the search of the vehicle, we note

that Brown also walked away from Nelson, reached back into the

vehicle while being frisked, and struggled with Nelson. These

facts provided further reason for Nelson to believe that there

was additional contraband in the vehicle. We thus conclude that

Nelson’s search of Baker’s vehicle was supported by probable

cause and that it therefore comported with the automobile

exception to the warrant requirement.

This all assumes, of course, that Nelson’s search of

Brown’s person, which uncovered the items that gave Nelson

probable cause to search the vehicle, was itself lawful. The

parties argue extensively over the point, but even assuming

arguendo that Nelson’s search of Brown in some way violated the

Fourth Amendment, it would be of no avail to Baker. For a

defendant must have proper standing in order to challenge a

search under the Fourth Amendment. See Rakas v. Illinois, 439

U.S. 128 (1978). Baker of course has standing to challenge the

search of his own vehicle. But not so the search of Brown.

This court has repeatedly held that one occupant of a vehicle

lacks standing to challenge the frisk or search of another.

See, e.g., United States v. Rumley, 588 F.3d 202, 206 n.2 (4th

Cir. 2009); United States v. Taylor, 857 F.2d 210, 214 (4th Cir.

14
1988). Baker therefore lacks standing to challenge the frisk

and search of Brown, which uncovered the contraband that

ultimately gave Nelson probable cause to search Baker’s vehicle.

For this reason as well, it would have been futile for Baker’s

lawyer to challenge the search of the vehicle on direct appeal.

In short, because the search of Baker’s vehicle was plainly

justified by the automobile exception to the warrant requirement

irrespective of Gant, Baker’s lawyer did not perform deficiently

in declining to challenge the search on direct appeal. And

because we find no deficient performance on this basis, we need

not address the government’s alternative argument that his

lawyer would have been precluded from raising such a challenge

in the first place because, under Federal Rule of Criminal

Procedure 12, Baker had waived the issue by failing to file

prior to trial a motion to suppress the fruits of the search.

B.

We must reject as well Baker’s argument under the second

prong of Strickland, namely that what he alleges was deficient

performance somehow prejudiced the defense. To show prejudice,

a defendant must demonstrate “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at

694. A “reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id.

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 Baker takes it for granted that he was prejudiced by his

lawyer’s failure to challenge the search of his vehicle under

Gant on direct appeal. Had such a challenge succeeded, he

contends, this court would have had to suppress the evidence

found during the search pursuant to the Fourth Amendment

exclusionary rule. And because all but one of his convictions

were based solely on that evidence, Baker argues that those

convictions would necessarily have been overturned.

As the district court noted, however, application of the

exclusionary rule is in fact barred in Baker’s case by the

Supreme Court’s decision in Davis v. United States, 131 S. Ct.

2419 (2011). Davis extended the “good faith” exception to the

exclusionary rule to hold that “[e]vidence obtained during a

search conducted in reasonable reliance on binding precedent is

not subject to the exclusionary rule.” Id. at 2429. The Court

announced this rule, moreover, in a case that also involved the

retroactive application of Gant. See id. at 2426. Applying the

good-faith exception to Davis’s case, the Court held that even

though Davis had successfully challenged a search on direct

appeal under Gant, the evidence obtained during the search was

not subject to suppression because the search had accorded with

binding circuit precedent when it was conducted. See id. at

2434.

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 Similarly, at the time Nelson searched Baker’s vehicle, our

precedent permitted the police to search a vehicle incident to

the lawful arrest of one of its occupants regardless of whether

the occupant was within reaching distance of the passenger

compartment, a rule that Gant subsequently abrogated. See

United States v. Wilks, 647 F.3d 520, 522 (4th Cir. 2011)

(citing United States v. Milton, 52 F.3d 78, 80 (4th Cir.

1995)). Following Davis, we have accordingly held that the

exclusionary rule does not bar the introduction of evidence

found during searches that would have been constitutional but

for Gant and that were conducted before the decision. See id.

at 524. Davis mandates the same result here, given that Nelson

was doing exactly what the law at the time said he could do when

he searched Baker’s vehicle. This is precisely the kind of

good-faith reliance on precedent that Davis meant to protect and

encourage.

Baker attempts to avoid this conclusion by noting that

Davis was not decided until 2011, after his appeal had concluded

and his conviction had become final. Baker thus argues that,

had his lawyer successfully challenged the search of his vehicle

under Gant on direct appeal, the good-faith exception would not

have barred the application of the exclusionary rule to his

case. This shows, Baker contends, that the outcome of his

appeal would have been very different indeed had his lawyer

17
raised Gant and that his defense was therefore prejudiced within

the meaning of Strickland.

Baker, however, misunderstands the nature of Strickland’s

prejudice inquiry. While it is certainly necessary to show that

the outcome of the proceeding at issue would have been different

in order to prove prejudice, it is not sufficient. As the

Supreme Court has explained, “an analysis focusing solely on

mere outcome determination, without attention to whether the

result of the proceeding was fundamentally unfair or unreliable,

is defective,” for “set[ting] aside a conviction or sentence

solely because the outcome would have been different but for

counsel’s error may grant the defendant a windfall to which the

law does not entitle him.” Lockhart v. Fretwell, 506 U.S. 364,

369-70 (1993) (citing United States v. Cronic, 466 U.S. 648, 658

(1984)). To avert such windfalls, Strickland’s prejudice prong

is governed by the law as it stands at the time a court is

considering a defendant’s ineffective-assistance claim, in

contrast to the performance prong, which is governed by the law

as it stood when the defendant’s lawyer acted. Id. at 372.

In determining whether Baker was prejudiced by his lawyer’s

alleged deficient performance, then, we must apply current law,

including Davis’s application of the good-faith exception. For

the reasons noted above, the exception would bar us from

suppressing the evidence found during the search of Baker’s

18
vehicle, because the officers were following the law as it

existed at the time of the search. This means that, regardless

of any appellate challenge to the search under Gant, Baker still

would not be prejudiced in the sense required to prove his

Strickland ineffective-assistance claim. To hold otherwise

would be to confer on Baker “a windfall to which the law does

not entitle him,” id. at 370, and to stray far from the core

purpose of the exclusionary rule, which is to deter unlawful

conduct on the part of officers, not law-abiding actions, see

United States v. Leon, 468 U.S. 897, 906 (1984). This we

decline to do.

IV.

For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED

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