Plain-View Seizure of Digital Surveillance Media and Post‑Verdict Courtroom Intimidation as Obstruction: United States v. Gilmore (11th Cir. 2025)

Introduction

In United States v. Dempsey Emmanuel Gilmore, No. 23‑12062 (11th Cir. Mar. 21, 2025) (per curiam) (unpublished), the Eleventh Circuit affirmed drug-trafficking and firearm convictions and a 360‑month total sentence arising out of a high-speed flight from a traffic stop during which the passenger (Gilmore) discarded five pounds of marijuana, 191 grams of high-purity methamphetamine, and a handgun. The case presented three principal issues:

Whether officers lawfully seized digital surveillance storage devices (DVRs and SD cards) from a residence when an incorporated attachment to the search warrant was not shown to occupants at the scene;
Whether the trial evidence was sufficient to support convictions for drug conspiracy, possession with intent to distribute, and firearms offenses absent forensic ties to the contraband; and
Whether a post-verdict courtroom outburst intimidating jurors and delaying proceedings warranted a two-level obstruction-of-justice enhancement under U.S.S.G. § 3C1.1.

The panel affirmed on all three issues, and sua sponte vacated one count’s sentence because it exceeded the statutory maximum applicable at the time of the offense. While unpublished and therefore non-precedential within the Eleventh Circuit, the opinion is a detailed application of several important doctrines: plain-view seizure of digital media used for surveillance, constructive possession and conspiracy proof via circumstantial evidence, § 3C1.1’s reach to in-court misconduct, and per-count statutory maximum compliance.

Summary of the Opinion

Motion to suppress: The court held that, regardless of whether an incorporated warrant attachment (Exhibit A) was present at the scene, the seizure of DVRs and SD cards was lawful under the plain-view doctrine. Officers were lawfully inside executing a warrant; active surveillance cameras and monitors were in plain view; and there was probable cause to believe the storage media contained evidence identifying the men who had just fled into the house. Officers later obtained a second warrant to search the contents.
Sufficiency of the evidence: Viewing the evidence in the light most favorable to the verdict, a reasonable jury could find that Gilmore conspired to distribute and constructively possessed the drugs and the firearm. The panel emphasized the coordinated disposal of contraband from the passenger side, the packaging and quantity consistent with distribution, the scale, flight into a house with additional marijuana in Gilmore’s vest, and a bag labeled with his first name in the Gucci satchel containing methamphetamine and the gun.
Obstruction-of-justice enhancement: The district court did not clearly err by applying § 3C1.1 based on Gilmore’s post-verdict conduct—approaching and berating the jury, raising his hands/voice, tussling with marshals, and causing the judge to be removed for safety—thereby intimidating at least one juror and interrupting the court’s business.
Sentencing error corrected sua sponte: The 121‑month sentence on the § 922(g)(1) count exceeded the then‑applicable 120‑month maximum (offense committed before the June 25, 2022 increase). The panel vacated that count’s sentence and remanded for a ministerial correction to 120 months, leaving the total sentence unaffected.

Analysis

Precedents Cited and Their Influence

United States v. Thomas, 818 F.3d 1230 (11th Cir. 2016): Provided the mixed standard of review for suppression rulings (factual findings for clear error; legal conclusions de novo). This framework guided the panel’s evaluation of the warrant scope and plain-view seizure.
Groh v. Ramirez, 540 U.S. 551 (2004): In a civil context suggested that incorporated attachments must be both incorporated and present at the search to satisfy the particularity requirement. Gilmore invoked Groh to argue the absence of Exhibit A at the scene was dispositive.
United States v. Grubbs, 547 U.S. 90 (2006): Clarified that the Fourth Amendment does not require an executing officer to present the warrant to the property owner before conducting a search, and does not protect an interest in monitoring searches. The panel noted Grubbs as counterpoint to Groh’s “present at the search” language.
United States v. Pulliam, 748 F.3d 967 (10th Cir. 2014) and United States v. Hamilton, 591 F.3d 1017 (8th Cir. 2010): Post-Groh/Grubbs circuit authority deeming the non-presence of incorporated attachments at the scene either constitutionally insignificant (Pulliam) or, even if a particularity violation, not warranting suppression (Hamilton). The Eleventh Circuit did not choose sides in a precedential way but catalogued these approaches.
Texas v. Brown, 460 U.S. 730 (1983): Anchored the plain-view doctrine: warrantless seizure is presumptively reasonable if officers are lawfully present and have probable cause to associate the item with criminal activity.
United States v. Smith, 459 F.3d 1276 (11th Cir. 2006) and United States v. Ladson, 774 F.2d 436 (11th Cir. 1985): Extended plain-view to items that are not themselves contraband but are evidence. Smith authorized seizing a lockbox of photographs without inspecting each photo where there was probable cause to believe some were illegal. The court analogized DVRs/SD cards here to such containers of evidentiary material.
United States v. Wilson, 565 F.3d 1059 (8th Cir. 2009): Cited for the proposition that officers may seize items believed to contain evidence connected to criminal activity without viewing their contents at the scene.
Standards for sufficiency: United States v. Westry, 524 F.3d 1198 (11th Cir. 2008); United States v. Bergman, 852 F.3d 1046 (11th Cir. 2017); United States v. Colston, 4 F.4th 1179 (11th Cir. 2021); United States v. Bell, 112 F.4th 1318 (11th Cir. 2024); United States v. Navarro‑Ordas, 770 F.2d 959 (11th Cir. 1985). These cases confirm de novo review, deference to jury verdicts, no distinction between direct and circumstantial evidence, and the permissibility of reasonable inferences.
Conspiracy and possession: United States v. Knowles, 66 F.3d 1146 (11th Cir. 1995) (circumstantial proof of conspiracies); United States v. Miranda, 425 F.3d 953 (11th Cir. 2005) (presence alone insufficient, but may be probative); United States v. Howard, 742 F.3d 1334 (11th Cir. 2014) and United States v. Battle, 892 F.2d 992 (11th Cir. 1990) (constructive possession); United States v. Green, 873 F.3d 846 (11th Cir. 2017) (mere presence/awareness insufficient). The panel relied on these to uphold conspiracy and constructive possession findings.
Evidence of flight: United States v. Ware, 69 F.4th 830 (11th Cir. 2023) (flight may show consciousness of guilt); applied to Gilmore’s conduct.
Obstruction enhancement and courtroom misconduct: United States v. Graham, 123 F.4th 1197 (11th Cir. 2024) (threats/intimidation of jurors/witnesses warrant § 3C1.1); United States v. Wright, 854 F.2d 1263 (11th Cir. 1988) (criminal contempt upheld where courtroom conduct interrupted proceedings). The panel analogized Gilmore’s in-court outburst to Wright and applied Graham’s articulation of § 3C1.1.
Per-count statutory maximums and sua sponte correction: United States v. Pon, 963 F.3d 1207 (11th Cir. 2020) (court must correct illegal sentences exceeding per-count maxima; ministerial remand without full resentencing). Used to vacate the 121‑month § 922(g)(1) sentence and remand to 120 months.

Legal Reasoning

1) Suppression: Plain-View Seizure of Digital Surveillance Storage Media

The district court found that the warrant application presented to the judge incorporated “Exhibit A,” which expressly authorized seizure of surveillance equipment and SD cards. Although officers did not hand Exhibit A to the occupants at execution, the Eleventh Circuit declined to decide whether that omission has constitutional significance in a criminal case. Instead, the panel affirmed under the plain-view doctrine:

Lawful access: Officers were executing a valid search warrant inside the residence.
Immediate apparent evidentiary value: Officers observed active surveillance cameras monitoring the interior and exterior, with DVRs/monitors running. Given that a police helicopter had tracked two men from the fleeing car into that very house, a reasonable officer had probable cause to believe the DVRs/SD cards contained evidence (footage identifying the fleeing suspects). The items were not contraband themselves, but their evidentiary character was immediately apparent.
Seizure vs. Search of contents: Officers seized the devices on plain-view/probable cause grounds and then procured a second warrant to view their contents. This sequence respected the distinction between seizing an item believed to contain evidence and searching its data, which generally requires a warrant.

Importantly, the panel underscored that “immediately apparent” does not mean officers must confirm the contents on site. It is enough that, under the totality of the circumstances, probable cause exists to believe the item contains evidence of a crime. The court analogized to physical containers (e.g., photo lockboxes in Smith), and cited the Eighth Circuit’s Wilson for digital storage devices.

On the “present-at-search” contention under Groh and Grubbs, the panel noted but did not resolve a modest inter-circuit tension: some circuits (Tenth) focus on the warrant as issued, not the copy provided at execution; others (Eighth) decline suppression even if an attachment was not shown during execution. The Eleventh Circuit left the question open in a published sense and affirmed on a plain-view ground that independently sustained the seizure.

2) Sufficiency: Conspiracy, Constructive Possession, and § 924(c)/§ 922(g) Elements

Applying the traditional deference to jury verdicts, the panel emphasized that conspiracies and constructive possession often turn on circumstantial evidence and reasonable inferences. The following facts collectively supported each conviction:

Coordinated disposal of contraband: The helicopter unit saw items being thrown from the front passenger window after a brief stop. On the ground, officers recovered a satchel with 191 grams of methamphetamine, a loaded .45 handgun, a scale, and a brown bag labeled “Dempsey,” plus five pounds of marijuana.
Distribution indicia: Meth was packaged in both street-level mini packets (19 half-gram bags) and larger bulk quantities (seven bags of 24–30 grams), consistent with distribution up the chain. A scale and large amounts of marijuana reinforced distribution intent.
Flight into a residence and additional drugs: Gilmore fled with the driver into a house; officers found Gilmore’s vest containing 67 grams of marijuana.
Constructive possession and knowledge: From the passenger-side disposal, the labeled bag in the satchel, the packaging/scale, and flight, the jury could infer Gilmore’s dominion, control, and knowledge of the drugs and the gun prior to disposal. Physical forensic ties (DNA/fingerprints) were not required.

On this record, a rational juror could find beyond a reasonable doubt that Gilmore (i) knowingly joined a drug-distribution conspiracy; (ii) possessed with intent to distribute methamphetamine and marijuana; (iii) possessed a firearm in furtherance of a drug-trafficking crime; and (iv) as a felon, possessed a firearm.

3) Sentencing: § 3C1.1 Obstruction-of-Justice via Post‑Verdict Courtroom Conduct

The district court’s factual findings, reviewed for clear error, established that immediately after the verdict and before the court had excused the jury or adjudicated guilt, Gilmore:

Approached the jury/prosecutor’s table raising his hands and voice;
Berated the jury, intimidating at least one juror observed by the judge;
Had to be restrained by marshals amid additional yelling from an associate; and
Caused the judge to be removed for safety, delaying the adjudication of guilt and impairing the jury’s orderly egress.

Relying on Wright (criminal contempt for courtroom assault interrupting proceedings) and Graham (threats/intimidation fall within § 3C1.1), the panel held that this conduct “obstructed the administration of justice.” The enhancement does not require that the misconduct alter the verdict or sentence; immediate interruption of court business and intimidation of jurors suffice.

4) Per‑Count Statutory Maximum: Sua Sponte Correction of § 922(g)(1) Count

For offenses committed before June 25, 2022, 18 U.S.C. § 922(g)(1) carried a 10-year maximum under § 924(a)(2). Congress later raised the maximum to 15 years for offenses committed on or after June 25, 2022 (Bipartisan Safer Communities Act, § 12004(c)). Gilmore’s offense predated the increase. The district court imposed 121 months on the § 922(g) count, exceeding the 120‑month max. Following Pon, the panel vacated that count’s sentence and remanded for the limited purpose of reducing it to 120 months; no full resentencing is required because the total term remains unchanged.

Impact

Digital evidence seizure under plain view: Even without reviewing contents on site, officers may seize surveillance storage media when the circumstances provide probable cause that the devices contain evidence (e.g., real-time surveillance of entrances used by fleeing suspects). This opinion fortifies law enforcement’s ability to secure digital surveillance media contemporaneously with a search, provided they obtain a warrant before examining the data.
Unresolved but important execution-formality issue: The Eleventh Circuit again avoided a definitive ruling on whether an incorporated attachment must be physically present at the search. Practitioners should treat this as an open question in the Eleventh Circuit and follow best practices: ensure attachments are both incorporated and available at execution.
Conspiracy and constructive possession proof: The opinion underscores that forensic evidence is not indispensable; coordinated behavior, packaging consistent with distribution, possession of paraphernalia (scale), personal identifiers, and flight may collectively carry the government’s burden.
Sentencing exposure for in-court misconduct: Post-verdict outbursts that intimidate jurors or interrupt proceedings can trigger § 3C1.1. Counsel should advise clients about in-court conduct risks; even brief interruptions or failed “attempts” to influence can suffice.
Per-count statutory maxima vigilance: Courts and counsel must ensure each count’s sentence does not exceed its statutory ceiling, particularly amid shifting statutory landscapes (e.g., the post–June 25, 2022 increase for § 922(g)). Appellate courts may correct such errors sua sponte via limited remand without disturbing the overall sentence structure.

Complex Concepts Simplified

Plain-view doctrine (seizure): If officers are lawfully present and see an item whose evidentiary nature is apparent, they can seize it without a separate warrant. For containers (physical or digital), they need probable cause to believe the container holds evidence; they generally still need a warrant to open/search the contents later.
Probable cause: A practical, common-sense judgment that there is a fair probability that evidence of a crime will be found in a particular place or item, assessed under the totality of circumstances.
Constructive possession: Control or dominion over an item, even without physical custody, can constitute possession—especially when paired with actions showing knowledge and control (e.g., disposing of the item, flight, or associated paraphernalia).
Drug conspiracy (21 U.S.C. § 846): Requires an agreement to violate drug laws, knowledge of the agreement, and voluntary participation. It can be proven by circumstantial evidence such as coordinated actions and distribution packaging.
U.S.S.G. § 3C1.1 (obstruction of justice): Adds two offense levels if the defendant willfully obstructed or attempted to obstruct the investigation, prosecution, or sentencing. Threats or intimidation of jurors/witnesses and conduct that interrupts court business qualify; actual success in influencing the outcome is unnecessary.
Sua sponte correction of illegal sentences: An appellate court may correct a per-count sentence exceeding the statutory maximum on its own initiative and remand for a limited modification without a full resentencing if the overall term is unaffected.
Unpublished decision: “Do Not Publish” means the opinion is non-precedential within the Eleventh Circuit, although it may be persuasive and instructive.

Conclusion

United States v. Gilmore delivers a practical road map for handling digital surveillance evidence seized during warrant execution: officers may rely on the plain-view doctrine to seize DVRs and SD cards when the circumstances furnish probable cause that the media contain relevant footage, and should then obtain a warrant to search the contents. The case also reinforces that conspiracies and constructive possession may rest on coherent circumstantial narratives—packaging, paraphernalia, coordinated disposal, and flight—and that courtroom conduct can have sentencing consequences. Finally, the opinion is a reminder that each count’s sentence must respect its statutory maximum, with appellate courts prepared to correct overages sua sponte.

Although unpublished, the opinion meaningfully synthesizes established principles across Fourth Amendment seizure doctrine, evidentiary sufficiency, and sentencing practice. For investigators, prosecutors, and defense counsel alike, Gilmore offers concrete guidance on seizing and litigating digital surveillance evidence, assessing circumstantial proof of drug and firearm offenses, and avoiding avoidable sentencing error.