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
2
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
3
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.
4
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
5
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.
6
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.
7
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).
8
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.
9
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.
11
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
12
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.
15
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.
16
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
19