United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 23-2179

___________________________ 

United States of America

 Plaintiff - Appellee

v.

Darion Lemont Thomas

 Defendant - Appellant

____________

Appeal from United States District Court 

for the Southern District of Iowa - Eastern

____________ 

Submitted: January 9, 2024

Filed: April 5, 2024 

____________

Before BENTON, ERICKSON, and KOBES, Circuit Judges. 

____________

ERICKSON, Circuit Judge.

Darion Thomas entered conditional pleas to two offenses: possession with 

intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 

841(b)(1)(C), and possession of a firearm in furtherance of a drug trafficking crime, 

in violation of 18 U.S.C. § 924(c)(1)(A)(i). On appeal, Thomas asserts the district 
-2- 

court1 erred when it (1) found the search of a backpack was voluntary; (2) 

determined law enforcement’s five-day delay between the seizure of a cell phone 

and the issuance of the search warrant for it was reasonable; and (3) applied a twolevel enhancement under U.S.S.G. § 3B1.1 based on text messages that showed a 

buyer-seller relationship. We affirm.

I. BACKGROUND

On September 3, 2021, law enforcement learned that Thomas, who had 

outstanding arrest warrants, was at a hospital in Bettendorf, Iowa, with his sick child 

and the child’s mother, Tyliyah Parrow. Surveillance video showed Thomas and 

Parrow arriving at the hospital, with Parrow carrying a child’s backpack and Thomas 

carrying a child and a cell phone. Later, the video captured Thomas entering and 

exiting the hospital using the phone while carrying the backpack. 

Detective Joseph Dorton learned from the child’s treating doctor that the child 

would be discharged that morning. After Thomas’s son finished receiving treatment, 

six plain-clothed officers and one uniformed officer approached the hospital room 

to arrest Thomas. Several officers entered the room, quickly brought Thomas to the 

floor, removed a gun from Thomas’s waistband, handcuffed him, and moved him to 

the hallway. The entire process took three minutes from the time the first officer 

entered the room. 

After Thomas was taken from the room, Detective Dorton spoke with Parrow

who was sitting on the hospital bed with her son. He introduced himself in a 

conversational tone and explained to Parrow that Thomas was being arrested for 

outstanding warrants. He asked Parrow if she knew whose backpack was on the

table at the foot of the bed that was within arms-reach of where Thomas had been 

sitting. Parrow motioned to herself. Detective Dorton followed up and asked 

Parrow, “Is that yours?” Parrow nodded and responded, “Yeah.” Detective Dorton 

1

The Honorable Stephen H. Locher, United States District Judge for the 

Southern District of Iowa.
-3- 

then asked, “Is it okay if I search it to make sure there’s nothing illegal in there?”

Parrow said, “Yeah.” Detective Dorton asked one more time, “Is that okay with 

you?” and Parrow again responded, “Yeah.” She then asked for her phone back 

which officers had taken from Thomas.

Detective Emily Rasche offered to find Parrow’s phone and Detective Dorton 

asked Rasche to remain in the hospital room. When Detective Dorton placed his 

hand on the backpack, he asked Parrow a third time if she was okay with him 

searching the backpack, and she responded, “Yeah.” Just as Detective Dorton 

started opening the backpack, he heard what sounded like a scuffle in the hallway. 

Detective Dorton went into the hallway where Thomas was apparently resisting 

arrest. When Parrow stood up, Detective Rasche told Parrow to have a seat. 

Detective Rasche then walked over to the backpack and asked Parrow one more time

if she had any issues with the officers searching it. The district court specifically 

found that “Parrow’s response is inaudible, but she appeared to answer in the 

negative[.]” Detective Rasche then began pulling items out of the backpack, 

including children’s clothing, children’s personal care items, and Parrow’s purse. 

Detective Rasche’s search of the backpack also yielded 66 pills, which tested 

positive for methamphetamine, and a small amount of marijuana. 

Detective Dorton returned to the room holding Parrow’s phone and explained

that it might contain evidence of crimes since Thomas was using it. He proposed 

two options: (1) law enforcement could keep the phone and apply for a search 

warrant, or (2) Parrow could consent to a download of the phone’s contents, which 

would be quicker and probably result in Parrow getting the phone back that day. 

Parrow agreed to a download. Detective Dorton tried to help Parrow recover 

numbers from her phone and offered to arrange for an officer to give her and her son

a ride home. 

When Parrow asked to hear the options regarding her phone again, the district 

court found the audio was “somewhat unclear” but “Parrow apparently revoked 

consent for Dorton to download the contents of the phone.” A Bettendorf police 
-4- 

officer then drove Parrow and her son home, and law enforcement retained the 

phone. A search warrant was issued five days later on Wednesday, September 8, 

2021. The Monday of that week had been Labor Day, a federal holiday. 

Thomas moved to suppress the evidence obtained from the backpack, arguing 

Parrow did not have authority over it or, if she had authority, her consent was 

involuntary due to a coercive environment. Because the warrant to search Parrow’s 

phone was premised on evidence found in the backpack, Thomas contended the 

evidence obtained as a result of the search warrant was fruit of the poisonous tree. 

He also argued that the evidence must be suppressed because law enforcement took 

an unreasonable amount of time to apply for the warrant after seizing the phone. 

Following a hearing, the district court denied his motion. 

Thomas pled guilty to two offenses, reserving his right to appeal the denial of 

his suppression motion. At the sentencing hearing, the government presented 

evidence that Thomas supervised a minor in the distribution of controlled 

substances. The district court applied a two-level enhancement pursuant to U.S.S.G. 

§ 3B1.1(c) and sentenced Thomas to 70 months on the drug offense and 60 months

on the firearm offense, to run consecutively, for a total term of imprisonment of 130 

months. On appeal, Thomas seeks review of the denial of his suppression motion 

and application of the two-level enhancement under the Sentencing Guidelines. 

II. DISCUSSION 

a. Motion to Suppress – Search of the Backpack 

When evaluating the denial of a motion to suppress evidence, we review 

factual findings for clear error and legal questions de novo. United States v. Jackson, 

811 F.3d 1049, 1051-52 (8th Cir. 2016). We review the reasonableness of the 

government’s reliance on an individual’s consent to search de novo. United States 

v. James, 353 F.3d 606, 615 (8th Cir. 2003). 
-5- 

Thomas contends the district court erred in finding the search of the backpack

was voluntary. The voluntariness of consent is assessed under the totality of the 

circumstances. United States v. Chaidez, 906 F.2d 377, 380 (8th Cir. 1990). We 

consider factors, including the individual’s age, intelligence and education, whether 

she cooperates with police, her knowledge of the right to refuse consent, whether the 

police threatened or intimidated her, and whether consent occurred in a public or 

secluded area. United States v. Bearden, 780 F.3d 887, 895 (8th Cir. 2015). Also 

relevant is whether the individual was intoxicated or under the influence of drugs, 

whether she relied on promises or misrepresentations made by the police, whether 

she was in custody or under arrest, and whether the individual objected to the search 

or stood silently while it occurred. Chaidez, 906 F.2d at 381.

Here, the search took place around 10 a.m. during daylight hours at a hospital. 

There was no sign that Parrow was intoxicated or impaired. During the interaction, 

the two plain-clothed officers who spoke with Parrow did not display their weapons, 

engage in physical intimidation, or make any promises, misrepresentations, or 

threats. They did not arrest or detain Parrow but instead spoke with her in a 

conversational manner. Parrow cooperated with the officers, asked questions about 

the cell phone, did not appear distressed about Thomas’s arrest, and watched the 

search of the backpack without objecting. 

After Parrow asserted the backpack was hers, Detective Dorton asked Parrow 

three times if he could search the backpack and Detective Rasche asked a fourth time

right before she started searching the backpack. At no point did Parrow object to the 

requests to search. While Parrow was not specifically advised by the officers that 

she could withhold her consent, she later revoked her consent to search her cell 

phone, indicating Parrow knew she had the right to refuse consent or revoke her 

consent. Thomas has not shown any of the district court’s findings were clearly 

erroneous or that the findings are insufficient to support the court’s determination 

that Parrow voluntarily consented to the search of the backpack. 

 
-6- 

b. Motion to Suppress – Seizure of the Cell Phone 

Thomas contends law enforcement’s seizure of the cell phone for five days 

without obtaining a search warrant was unreasonable. The duration of a seizure 

pending the issuance of a search warrant must be reasonable. United States v. Mays, 

993 F.3d 607, 616 (8th Cir. 2021). We measure reasonableness objectively based 

on the totality of the circumstances, balancing the privacy-related concerns against 

law enforcement’s concerns. Id. at 616-17. 

As an initial matter, since Fourth Amendment rights “may not be asserted 

vicariously,” Thomas has to show that he has an expectation of privacy in the cell 

phone. United States v. Barragan, 379 F.3d 524, 529 (8th Cir. 2004). Relevant 

factors include ownership of the property, possession and/or control, historical use, 

ability to regulate access, the totality of circumstances surrounding the search, any 

subjective expectation of privacy, and the objective reasonableness of that 

expectation of privacy. United States v. Pierson, 219 F.3d 803, 806 (8th Cir. 2000).

While the hospital’s surveillance video showed Thomas holding the phone and he 

regularly used it, the phone belonged to Parrow. Parrow permitted law enforcement 

to seize it and worked with the detectives to retrieve numbers she needed prior to the 

seizure. It is questionable whether Thomas has standing to challenge the seizure. 

Even assuming Thomas has standing, Thomas has failed to show a Fourth 

Amendment violation. The seizure did not meaningfully interfere with Thomas’s 

possessory interests because he was in custody during the relevant period. United 

States v. Clutter, 674 F.3d 980, 984 (8th Cir. 2012). There is also no evidence that 

Thomas ever requested its return, which further weakens any Fourth Amendment 

claim. United States v. Johns, 469 U.S. 478, 487 (1985). In addition, smartphones 

retain data for long periods of time, so any delay between the seizure and search was 

unlikely to cause the loss of any personal data. United States v. Bragg, 44 F.4th 

1067, 1071 (8th Cir. 2022).
-7- 

In contrast, the government had probable cause to believe the cell phone 

contained evidence of Thomas’s crimes and thus had a strong interest for seizing it. 

Mays, 993 F.3d at 617. Thomas was being arrested on outstanding warrants, he was 

a known felon in possession of a firearm, and law enforcement discovered drugs in 

the backpack in his possession. The district court found that the phone, while in law 

enforcement’s possession for five days before the issuance of the search warrant, 

was held for only two business days due to the holiday weekend. While we are 

uncertain that the holiday weekend is legally significant in the analysis, under the 

facts of this case, including Thomas’s questionable standing, his incarceration during 

the entire time the phone was retained, that the phone was being shared by Thomas 

with Parrow, and the lack of a clear expectation of privacy, we have little difficulty 

concluding that Thomas has failed to show the delay was unreasonable. 

c. Sentencing – Two-Level Role Enhancement

Finally, Thomas challenges the district court’s application of a two-level 

enhancement for his role in the offense. We review the district court’s factual 

findings, including its determination of a defendant’s role in the offense, for clear 

error. United States v. Cosey, 602 F.3d 943, 947 (8th Cir. 2010).

Section 3B1.1(c) of the Sentencing Guidelines provides for a two-level 

increase in a defendant’s offense level if he supervised or managed another 

individual in one or more drug transactions. Thomas both agreed to the application 

of the enhancement in his amended plea agreement and failed to object to its 

application in his sentencing memorandum and at the hearing. Even without his

admission or the failure to object, the government provided text messages sufficient 

to demonstrate Thomas supervised a minor in drug transactions. The district court 

did not clearly err in applying the two-level role enhancement when calculating 

Thomas’s advisory Sentencing Guidelines range. 
-8- 

III. CONCLUSION

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

______________________________