11‐5262‐cr (L)
United States v. Aguiar
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________________
August Term, 2012
(Argued: October 5, 2012 Decided: December 13, 2013)
Docket Nos. 11‐5262‐cr(L), 11‐5329‐cr (con), 11‐5330‐cr (con)
____________________
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN AGUIAR, WILLIAM MURRAY, and COREY WHITCOMB,
Defendants‐Appellants.1
____________________
Before: JACOBS, POOLER and HALL, Circuit Judges.
Appellants Steven Aguiar, William Murray, and Corey Whitcomb challenge their
convictions in the United States District Court for the District of Vermont
(Sessions, J.) on multiple charges related to their participation in a conspiracy to
distribute cocaine and heroin. Appellants’ primary argument is that the
warrantless placement of a global positioning system device (“GPS”) on Aguiar’s
1
The Clerk of the Court is directed to amend the caption as above.
vehicles constituted a search within the meaning of the Fourth Amendment,
requiring the suppression of evidence collected by the government using data
transmitted by the GPS. As we find the government’s placement of the GPS
device falls within the good‐faith exception set forth in Davis v. United States, 131
S. Ct. 2419 (2011), we affirm the judgments of conviction.
Affirmed.
____________________
DAVID J. WILLIAMS, Jarvis, McArthur & Williams
LLC, Burlington, VT, for Defendant‐Appellant Stephen
Aguiar.
RICHARD C. BOTHFELD, Bothfeld & Volk, PC,
Burlington, VT, for Defendant‐Appellant Corey Whitcomb.
ROBERT S. BEHRENS, Burlington, VT, for Defendant‐
Appellant William Murray.
WENDY L. FULLER, Assistant United States Attorney,
(Tristam J. Coffin, United States Attorney for the District
of Vermont, Gregory L. Waples, Assistant United States
Attorney, on the brief) Burlington, VT, for Appellee.
POOLER, C.J.:
Acting without a warrant, an agent from the Drug Enforcement Agency
(“DEA”) placed a global positioning system device (“GPS”) on the Subaru
Impreza driven by appellant Stephen Aguiar. The data gathered by the GPS
aided law enforcement in identifying avenues of investigation, supported
2
applications for wiretap warrants, and led investigators to other evidence
collected and introduced at trial. Appellants sought to suppress the evidence
gathered with the aid of GPS data, arguing that the placement and tracking
violated the Fourth Amendment. The United States District Court for the District
of Vermont (Sessions, J.) denied the motion. Aguiar and appellants Corey
Whitcomb and William Murray were convicted on multiple counts flowing from
a conspiracy to possess and distribute cocaine and heroin.
Following appellants’ convictions, the Supreme Court handed down
United States v. Jones, which held that “the Government’s installation of a GPS
device on a target’s vehicle, and its use of that device to monitor the vehicle’s
movements, constitutes a ‘search’“ for Fourth Amendment purposes. 132 S. Ct.
945, 949 (2012) (footnote omitted). Jones left open the question of whether the
warrantless use of GPS devices would be “reasonable—and thus lawful—under
the Fourth Amendment [where] officers ha[ve] reasonable suspicion, and indeed
probable cause” to conduct such a search. Id. at 954 (internal quotation marks
omitted). As we find the government’s actions in this case fall within the good‐
faith exception to the excusionary rule set forth in Davis v. United States, 131 S.
Ct. 2419 (2011), we decline to reach the issue of whether the search was
3
unconstitutional.2
BACKGROUND
In mid‐to‐late 2008, members of the Burlington Police Department (“BPD”)
who were investigating a cocaine and heroin distribution ring focused their
attention on leads indicating that Aguiar was transporting cocaine from
Massachusetts into Vermont. William Murray was suspected of being one of
Aguiar’s main cocaine distributors, and Corey Whitcomb became a target of the
investigation later on. Based on the information developed by BPD, in early 2009
the DEA joined the investigation.
On January 23, 2009, DEA agent Richard Carter installed a GPS device on
Aguiar’s Impreza without either a search warrant or consent. Carter later
installed GPS trackers on other cars driven by Aguiar, and changed the batteries
in the devices as needed. Once installed and activated, the GPS device
transmitted a live signal to a DEA server, which showed the precise location of
Aguiar’s car in real time. Law enforcement agents were able to use the GPS data
to remotely monitor the car’s movements. The DEA developed software that
2
The parties submitted several letters pursuant to Federal Rule of
Appellate Procedure 28(j), which we considered in preparing this opinion.
4
allows agents to save, track and analyze the data generated by the GPS device.
The DEA began receiving GPS data the day the device was attached, and
continued to collect GPS data from Aguiar’s vehicles until his arrest on July 30,
2009.
Using data generated by the GPS device, DEA agents were able to identify
additional suspects and obtain pen register and trap and trace orders, as well as a
Title III order allowing agents to wiretap Aguiar’s cell phone. At trial, the
government introduced various evidence developed with the aid of the GPS data,
including maps depicting Aguiar’s travel routes, surveillance photos, and
testimony of officers who made visual observations of Aguiar and his activities.
Following their indictments and arrests, appellants moved to suppress the
data collected from the GPS device. The district court denied the motion. It
relied on United States v. Knotts, 460 U.S. 276, 281 (1983), for the proposition that
“[a] person traveling in an automobile on public thoroughfares has no reasonable
expectation of privacy in his movements from one place to another.” Seeing no
material distinction between the beeper devices used to track vehicle movement
in Knotts and the GPS devices used here, the district court ruled that the
warrantless use of a tracking device on public roads did not violate the Fourth
5
Amendment. Appellants were convicted after a jury trial, and this appeal
followed.
ANALYSIS
“We review the factual findings on which the district court’s suppression
ruling was based . . . for clear error, viewing the evidence in the light most
favorable to the government; the legal conclusions on which this ruling was
based are reviewed de novo.” United States v. Watson, 404 F.3d 163, 166 (2d Cir.
1995) (internal quotation marks, alteration and italics omitted). The appellants
here contest the denial of their motion to suppress the GPS data and evidence
derived from that data, based on the Supreme Court’s decision in United States v.
Jones, 132 S. Ct. 945 (2012).3 All seek to vacate their convictions and remand the
case to the district court for a new suppression hearing.
I. The state of the law on tracking technology pre‐Jones.
We start with an examination of the law prior to the decision in Jones,
beginning with United States v. Knotts, 460 U.S. 276, 277 (1983). In Knotts, the police
3
The government argues that Whitcomb and Murray cannot challenge their
convictions based on the GPS data because they do not have standing to contest a
search of Aguiar’s vehicle. The district court granted Murray and Whitcomb’s motions
to join the challenge of the use of the GPS tracker, noting that their motions to join in
that challenge were unopposed. Because we find the good‐faith exception applies, we
assume without deciding that Whitcomb and Murray have standing to press their
challenge.
6
were investigating a conspiracy to manufacture controlled substances, including
methamphetamine. 460 U.S. at 277. With the permission of the container’s owner, the
police placed a beeper inside of a five gallon drum containing chloroform purchased by
one of the defendants. When defendant picked up the container, the police followed the
defendant’s car by tracking the radio signal emitted by the beeper, and eventually
tracked the container to a cabin used by the defendant. Id. at 278‐79. The police then
obtained a search warrant for the cabin, based in large part upon the data collected
through use of the beeper. Id. at 279. Defendant sought to suppress the evidence
obtained based on the warrantless monitoring of the beeper. The Supreme Court found
no Fourth Amendment violation, stating that “[a] person traveling in an automobile on
public thoroughfares has no reasonable expectation of privacy in his movements from
one place to another.” Id. at 281.
The Supreme Court next addressed the issue in United States v. Karo, 468 U.S. 705
(1984), where a beeper was used to track an object inside of a private residence, rather
than in a public area. As in Knotts, government agents installed a beeper inside a
container, then used the beeper to track the movement of the container to various
locations, including a number of private residences and a commercial storage facility.
468 U.S. at 708‐10. Defendants moved to suppress the evidence collected from within
one of the private residences, and the Supreme Court agreed that using the beeper to
7
monitor the movement of the container within private residences violated the Fourth
Amendment. Id. at 714. The Karo Court held that “[a]t the risk of belaboring the
obvious, private residences are places in which the individual normally expects privacy
free of governmental intrusion not authorized by a warrant, and that expectation is
plainly one that society is prepared to recognize as justifiable.” Id. The Karo Court
distinguished Knotts:
The monitoring of an electronic device such as a beeper is, of
course, less intrusive than a full‐scale search, but it does
reveal a critical fact about the interior of the premises that the
Government is extremely interested in knowing and that it
could not have otherwise obtained without a warrant. The
case is thus not like Knotts, for there the beeper told the
authorities nothing about the interior of Knotts’ cabin. The
information obtained in Knotts was “voluntarily conveyed to
anyone who wanted to look . . .,” 460 U.S., at 281, 103 S. Ct., at
1085; here, as we have said, the monitoring indicated that the
beeper was inside the house, a fact that could not have been
visually verified.
468 U.S. at 715.
After Knotts and Karo, tracking technology evolved and law enforcement began
employing GPS devices instead of beepers. In United States v. McIver, the Ninth Circuit
considered the argument that placing a GPS device on a vehicle constituted a trespass
and rejected it because the vehicle was parked “outside the curtilage” of a home when
the device was attached, such that defendant lacked “a legitimate expectation of privacy
cognizable under the Fourth Amendment.” McIver, 186 F.3d 1119, 1126 (9th Cir. 1999)
8
abrogated by Jones, 132 S. Ct. at 945. Nor did placing the GPS device constitute an illegal
search and seizure, as
McIver did not produce any evidence to show that he
intended to shield the undercarriage of his Toyota 4Runner
from inspection by others. Furthermore, in placing the
electronic devices on the undercarriage of the Toyota
4Runner, the officers did not pry into a hidden or enclosed
area.
Id. at 1127. In addition,
McIver did not present any evidence that the placement of
the magnetized tracking devices deprived him of dominion
and control of his Toyota 4Runner, nor did he demonstrate
that the presence of these objects caused any damage to the
electronic components of the vehicle. Under these
circumstances, we hold that no seizure occurred because the
officers did not meaningfully interfere with McIver’s
possessory interest in the Toyota 4Runner.
Id.
The Ninth Circuit reached the same result in United States v. Pineda–Moreno,
where the government conceded the appellant’s car was parked within the curtilage of
his home when the GPS device was placed. 591 F.3d 1212, 1214–15 (9th Cir. 2010),
vacated, 132 S.Ct. 1533 (2012). Finding the driveway where the vehicle was parked “had
no gate, no ‘No Trespassing’ signs, and no features to prevent someone standing in the
street from seeing the entire driveway,” the Ninth Circuit concluded appellant lacked a
reasonable expectation of privacy in the driveway. Id. at 1215. The Ninth Circuit also
found that like the beeper at issue in Knotts,
9
[t]he only information the agents obtained from the [GPS]
tracking devices was a log of the locations where
Pineda‐Moreno’s car traveled, information the agents could
have obtained by following the car. “Insofar as
[Pineda‐Moreno’s] complaint appears to be simply that
scientific devices such as the [tracking devices] enabled the
police to be more effective in detecting crime, it simply has no
constitutional foundation. We have never equated police
efficiency with unconstitutionality and decline to do so now.”
Id. at 1216 (quoting Knotts, 460 U.S. at 284).
Similarly, in United States v. Garcia, the Seventh Circuit found the warrantless
attachment of a GPS device to a vehicle was not a search. 474 F.3d 994, 996‐97 (7th Cir.
2007), abrogated by Jones, 132 S. Ct. at 945. The Seventh Circuit found the GPS device
merely acted as a “substitute . . . for an activity, namely following a car on a public street,
that is unequivocally not a search within the meaning of the amendment.” Id. at 997
(emphasis in the original).4
It was not until the D.C. Circuit issued its decision in United States v. Maynard in
August of 2010 that a circuit court found attaching a GPS tracking device to a suspect’s
car violated the Fourth Amendment. 615 F.3d 544, 565 (D.C. Cir. 2010). The D.C. Circuit
found that “the police used the GPS device . . . to track [defendant’s] movements 24
hours a day for 28 days as he moved among scores of places, thereby discovering the
4
In dicta, the Eighth Circuit also opined that placing a GPS tracking device on
the bumper of a suspect’s car did not violate the Fourth Amendment. See United States
v. Marquez, 605 F.3d 604, 609‐10 (8th Cir. 2010).
10
totality and pattern of his movements from place to place to place.” Id. at 558. That
monitoring gave the police access to information not exposed to the public:
First, unlike one’s movements during a single journey, the
whole of one’s movements over the course of a month is not
actually exposed to the public because the likelihood anyone
will observe all those movements is effectively nil. Second,
the whole of one’s movements is not exposed constructively
even though each individual movement is exposed, because
that whole reveals more—sometimes a great deal more—than
does the sum of its parts.
Id. (emphasis in the original). The Maynard court concluded that the warrantless use of
a GPS device to track a suspect’s movements offended the Constitution, and further
found that the GPS data was essential to the government’s case against defendant
Antoine Jones. Id. at 557–58. Accordingly, the court overturned the convictions
obtained against Jones based on those data.
The Supreme Court took up the case, now captioned United States v. Jones, 132 S.
Ct. 945 (2012). The Court held that “the Government’s installation of a GPS device on a
target’s vehicle, and its use of that device to monitor the vehicle’s movements,
constitutes a ‘search’” within the meaning of the Fourth Amendment. Id. at 949 (footnote
omitted). The Supreme Court explained that:
[i]t is important to be clear about what occurred in this case:
The Government physically occupied private property for the
purpose of obtaining information. We have no doubt that
such a physical intrusion would have been considered a
“search” within the meaning of the Fourth Amendment when
11
it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C.P.
1765), is a “case we have described as a ‘monument of
English freedom’ ‘undoubtedly familiar’ to ‘every American
statesman’ at the time the Constitution was adopted, and
considered to be ‘the true and ultimate expression of
constitutional law’“ with regard to search and seizure.
Id. (quoting Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989)). The Court rejected the
government’s argument that Jones lacked a reasonable expectation of privacy in the
underbody of the Jeep to which the GPS device was attached
because Jones’s Fourth Amendment rights do not rise or fall
with the Katz formulation. At bottom, we must “assur[e]
preservation of that degree of privacy against government
that existed when the Fourth Amendment was adopted.”
Kyllo, supra, at 34, 121 S.Ct. 2038. As explained, for most of
our history the Fourth Amendment was understood to
embody a particular concern for government trespass upon
the areas (“persons, houses, papers, and effects”) it
enumerates. Katz did not repudiate that understanding.
Jones, 132 S. Ct. at 950 (footnote omitted).
II. The state of the law post‐Jones.
While Jones settled the issue of whether the warrantless use of a GPS device to
track a suspect’s movements constitutes a search within the meaning of the Fourth
Amendment, Jones did not address the issue of whether the warrantless use of GPS
devices would be “reasonable—and thus lawful—under the Fourth Amendment [where]
officers ha[ve] reasonable suspicion, and indeed probable cause” to execute such a
search. 132 S. Ct. at 954 (citation and internal quotation marks omitted). A warrantless
12
search is “per se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well‐delineated exceptions.” Katz v. United States, 389 U.S.
347, 357 (1967) (footnote omitted). “To safeguard Fourth Amendment rights generally,
the Supreme Court has crafted the exclusionary rule, requiring the exclusion of evidence
when the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth
Amendment rights.” United States v. Stokes, 733 F.3d 438, 443 (2d Cir. 2013) (internal
quotation, citation and alteration omitted). However, “[t]he fact that a Fourth
Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not
necessarily mean that the exclusionary rule applies.” Herring v. United States, 555 U.S.
135, 140 (2009). “Indeed, exclusion has always been our last resort, not our first
impulse.“ Id. (internal quotation marks omitted). The exclusionary rule is subject to a
good‐faith exception, crafted by the Supreme Court in Davis, 131 S.Ct. 2419. Courts
grappling with the issue of warrantless GPS searches conducted prior to Jones often
found that their analysis turned on whether the good‐faith exception applied. See United
States v. Sparks, 711 F.3d 58, 62 (1st Cir. 2013) (noting few courts “have grappled with the
warrant question so far, largely because the searches at issue in recent cases occurred
pre‐Jones, allowing the government to argue, and a number of courts to find, that the
good‐faith exception would apply even if the searches were unconstitutional.”) cert
denied, — S. Ct. — , No. 12‐10957, 2013 WL 3230428 (Oct. 7, 2013).
13
The good‐faith exception provides that “searches conducted in objectively
reasonable reliance on binding appellate precedent are not subject to the exclusionary
rule.” Davis, 131 S. Ct. at 2423–24. Davis involved officers who conducted a search
of an automobile contemporaneously with an arrest, in accordance with binding
circuit precedent. Id. As defendant’s case progressed, that precedent was
overruled, meaning the search at issue ended up violating the Fourth
Amendment. Because the officer acted on good‐faith reliance in the law at the
time of the search, the Davis Court declined to suppress the evidence collected
during that search as would ordinarily be required under the exclusionary rule.
Id. at 2429. Noting that the exclusionary rule is a “prudential doctrine created by
this Court to compel respect for the constitutional guaranty,” with the goal of
“deter[ring] future Fourth Amendment violations,” id. at 2426 (internal quotation
mark and citation omitted), the Davis Court stressed the goal of deterrence must
be balanced against
the “substantial social costs” generated by the rule.
Exclusion exacts a heavy toll on both the judicial system
and society at large. It almost always requires courts to
ignore reliable, trustworthy evidence bearing on guilt or
innocence. And its bottom‐line effect, in many cases, is
to suppress the truth and set the criminal loose in the
community without punishment. Our cases hold that
society must swallow this bitter pill when necessary, but
14
only as a “last resort.” For exclusion to be appropriate,
the deterrence benefits of suppression must outweigh its
heavy costs.
Id. at 2427 (citations omitted). Invoking its decision in United States v. Leon, 468
U.S. 897 (1984), the Court observed:
The basic insight of the Leon line of cases is that the
deterrence benefits of exclusion “var[y] with the
culpability of the law enforcement conduct” at issue.
When the police exhibit “deliberate,” “reckless,” or
“grossly negligent” disregard for Fourth Amendment
rights, the deterrent value of exclusion is strong and
tends to outweigh the resulting costs. But when the
police act with an objectively “reasonable good‐faith
belief” that their conduct is lawful, or when their
conduct involves only simple, “isolated” negligence, the
“deterrence rationale loses much of its force,” and
exclusion cannot “pay its way.”
Id. at 2427‐28 (internal citations omitted). Thus, “searches conducted in
objectively reasonable reliance on binding appellate precedent are not subject to
the exclusionary rule” when those cases are later overturned. 131 S. Ct. at 2423‐24.
Several of our sister circuits have applied the good‐faith exception in cases
where warrantless GPS searches were conducted pre‐Jones, and did not require
the evidence collected by those searches be suppressed. See Sparks, 711 F.3d at 62‐
63; United States v. Andres, 703 F.3d 828, 834‐35 (5th Cir. 2013) cert denied, 133 S. Ct.
15
2814 (2013); United States v. Pineda–Moreno, 688 F.3d 1087, 1090‐91 (9th Cir. 2012)
cert denied, 133 S. Ct. 994 (2013). Several district courts have also applied the good
faith exception to allow evidence obtained from pre‐Jones warrantless GPS
searches to stand. See, e.g., United States v. Baez, 878 F. Supp. 2d 288, 289 (D. Mass.
2012) (“Where, as here, law enforcement officers at the time they act have a good
faith basis to rely upon a substantial consensus among precedential courts,
suppression of probative evidence is too high a price to pay because of the
subsequent supervention of that consensus by the Supreme Court.”); United States
v. Leon, 856 F. Supp. 2d 1188, 1193 (D. Haw. 2012) (as there was no binding
precedent authorizing the practice at the time, Davis did not control, but “after
examining precedent as of 2009, the court finds that the agents’ conduct in the use
of the GPS tracking device was objectively reasonable”); United States v. Oladosu,
887 F. Supp. 2d 437, 448 (D. R.I. 2012) (evidence would not be excluded where at
the time the GPS device was attached to defendant’s vehicle, the Supreme Court
had approved the warrantless use of beeper technology and two circuit courts had
extended that rule to GPS devices).
Other courts, however, adopted a much stricter rule, finding the precedent
at issue must be (1) within the Circuit and (2) specific to the facts at hand. United
16
States v. Katzin, 732 F.3d 187, 210 (3d Cir. 2013). Katzin first held that “the police
must obtain a warrant prior to attaching a GPS device on a vehicle, thereby
undertaking a search that the Supreme Court has compared to ‘a constable’s
concealing himself in the target’s coach in order to track its movements.’” Id. at
198 (quoting Jones, 132 S. Ct. at 950 n.3). The Third Circuit then declined to apply
the exclusionary rule, finding “Knotts and Karo are both distinguishable given (1)
the lack of a physical intrusion in those cases, (2) the placement by police of the
beepers inside containers, and (3) the marked technological differences between
beepers and GPS trackers.” Id. at 206. Katzin also rejected reliance on out‐of‐
circuit cases, finding such reliance “would eviscerate the notion that clear and
well‐settled precedent should control and thus contradicts the basic principles of
stare decisis.” Id. at 208. A number of district courts have reached similar
conclusions. See United States v. Robinson, 903 F. Supp. 2d 766, 784 (E.D. Mo. 2012)
(“holding in Davis extends only to ‘binding’ precedent”); United States v. Lee, 862
F. Supp. 2d 560, 569‐70 (E.D. Ky. 2012) (limiting good‐faith exception to binding
appellate precedent); United States v. Lujan, No. 2:11CR11‐SA, 2012 WL 2861546 at
* 4 (N.D. Miss. 2012) (“although the placement and use of a GPS tracker in this
instance was per se unreasonable without a warrant under the Fourth
17
Amendment, because there was an independent basis for pulling Lujan over in
Arkansas and separate probable cause (as well as valid consent) to search his
vehicle, the evidence will not be suppressed”).
III. Application of Jones and Davis.
The government here concedes, as it must, that post‐Jones attaching a GPS
tracking device to Aguiar’s car without a warrant is a search within the meaning
of the Fourth Amendment. It urges us to find that its actions fall within a number
of different execptions to the exclusionary rule. As we agree with the
government that the good‐faith exception applies here, we do not reach any of its
alternative arguments.
We start by addressing what is “binding appellate precedent” within the
meaning of Davis. In the context of statutory interpretation, “binding precedent”
refers to the precedent of this Circuit and the Supreme Court. See S.E.C. v.
Dorozhko, 574 F.3d 42, 46 (2d Cir. 2009). Prior to Jones, our Circuit lacked occasion
to opine on the constitutionality of using electronic tracking devices attached to
vehicles, either of the beeper or GPS variety. However, the Supreme Court did
have occasion to address the issue in both Knotts and Karo, and we find that at the
time the GPS tracking device was applied to Aguiar’s car in January 2009, law
enforcement could reasonably rely on that binding appellate precedent.
18
The Supreme Court’s decision in Knotts stood for the proposition that the
warrantless use of a tracking device to monitor the movements of a vehicle on
public roads did not violate the Fourth Amendment. 460 U.S. at 281‐82, 285.
Further, Karo discounted the importance of trespass in placing a device, stating
that ”a physical trespass is only marginally relevant to the question of whether the
Fourth Amendment has been violated.” 468 U.S. at 712‐13. Karo’s de minimis
treatment of the trespass issue gave no indication that the issue of trespass would
become the touchstone for the analysis in Jones. Moreover, Karo’s brushing off of
the potential trespass fits logically with earlier Supreme Court decisions
concluding that “the physical characteristics of an automobile and its use result in
a lessened expectation of privacy therein.“ New York v. Class, 475 U.S. 106, 112
(1986). Nor is there an expectation of privacy when a car “travels public
thoroughfares where its occupants and its contents are in plain view,” Cardwell v.
Lewis, 417 U.S. 583, 590 (1974). Taken together, law enforcement could reasonably
conclude placing a GPS device on the exterior of Aguiar’s vehicles did not violate
the Fourth Amendment.
Moreover, we find the beeper technology used in Knotts sufficiently similar
to the GPS technology deployed by the government here. See, e.g., Sparks, 711 F.3d
19
at 66 (finding defendants failed to distinguish in any substantive way how the
installation of a beeper differed from the installation of a GPS device). Like the
device at issue in Knotts, the GPS device allows law enforcement to conduct the
same sort of surveillance it could conduct visually, but in a more efficient and
cost‐effective manner. Appellants argue that the GPS surveillance here continued
over a period of months, tantamount to the sort of “dragnet type law enforcement
practices” the Knotts court specifically declined to address. Knotts, 460 U.S. at 284.
But the record indicates that the GPS device was used to track Aguiar’s vehicles
on public thoroughfares, with technology undertaking an activity that police
officers would have physically performed in the past. “Insofar as respondent’s
complaint appears to be simply that scientific devices such as the beeper enabled
police to be more effective in detecting crime, it simply has no constitutional
foundation.” Id.
Our conclusion that the officers here relied in good faith on Knotts in
placing the GPS device on Aguiar’s vehicles is reinforced by the fact that several
sister circuits reached similar conclusions. See Pineda–Moreno, 591 F.3d at 1216–17
(holding that GPS tracking device used to monitor individual’s movements in his
vehicle was not a search, relying on Knotts ); Garcia, 474 F.3d at 997–98 (same); see
20
also, e.g., United States v. Jesus–Nunez, No. 1:10–CR–00017–01, 2010 WL 2991229, at
* 5 (M.D. Pa. 2010); United States v. Burton, 698 F. Supp. 2d 1303, 1307–08 (N.D. Fla.
2010); United States v. Moran, 349 F. Supp. 2d 425, 467–68 (N.D.N.Y. 2005). These
cases are not binding precedent and thus do not control our analysis under Davis,
but do support the conclusion that relying on Knotts was objectively reasonable.
See, e.g., Katzin, 732 F.3d at 209 (noting that at the time the GPS device in question
was placed, there was a circuit split on the issue of whether the warrantless use of
such devices violated the Fourth Amendment).
At bottom, sufficient Supreme Court precedent existed at the time the GPS
device was placed for the officers here to reasonably conclude a warrant was not
necessary in these circumstances. Plainly, post‐Jones, the landscape has changed,
and law enforcement will need to change its approach accordingly.
IV. Appellants’ remaining arguments.
A. The denial of a Franks hearing.
As part of its investigation into Aguiar’s activities, the government sought
a pen register and trap and trace warrant. In his April 3, 2009 application for a
hybrid pen register/trap and trace order, DEA Agent Couture affirmed that on
January 1, 2009, a confidential informant placed a recorded phone call to Aguiar at
21
(617) 549‐2915. However, in his supporting affidavit for the June 3, 2009 hybrid
order, Couture stated that the January 1 phone call was placed to Aguiar at (617)
763‐8409. There is no dispute that the 8409 number in the June 3 application is the
one actually called by the confidential informant. Appellants moved to suppress
the evidence gathered pursuant to the trap and trace warrant, arguing that (1) the
application contained a false statement of fact, and that false statement was the
only evidence supporting the warrant, or (2) at a minimum, pursuant to Franks v.
Delaware, 438 U.S. 154, 155‐56 (1978), an evidentiary hearing was required to
determine if Agent Couture intentionally, knowingly or with reckless disregard
for the truth made false statements essential to a finding of probable cause. The
district court denied both requests, and appellants challenge that denial on
appeal.
The district court properly denied both requests. We agree with the district
court’s analysis that even if the false statement were stricken from the affidavits,
the affidavits are replete with information regarding controlled purchases of
cocaine, in‐person surveillance of Aguiar’s travels and the use of multiple “burn”
cell phones to conduct business among the target subjects—all of which would
satisfy the necessary grounds to issue a hybrid order.
22
B. The search of Aguiar’s cell phone.
After Aguiar was arrested, his car was searched. One of the items seized
was his iPhone. Roughly two months after he was arrested, the DEA examined
the iPhone, and discovered a photograph of what appeared to be a brick of
cocaine. The district court found Aguiar’s iPhone was located in his car, and thus
the DEA could legally search it without a warrant because it was a closed
container, found in the car, “that may conceal the object of the search.” United
States v. Ross, 456 U.S. 798, 825 (1982). On appeal, Aguiar challenges the search of
his cell phone, which he argues required the agents first obtain a warrant. See
United States v. Flores‐Lopez, 670 F.3d 803, 805 (7th Cir. 2012) (noting that cell
phones are “quite likely to contain, or provide ready access to, a vast body of
personal data. The potential invasion of privacy in a search of a cell phone is
greater than in a search of a ‘container’ in a conventional sense even when the
conventional container is a purse that contains an address book (itself a container)
and photos.”) Even assuming arguendo that the warrantless search of Aguiar’s
cell phone violated the Fourth Amendment, the only evidence derived therefrom
and introduced at trial was a picture of a brick of cocaine and a print‐out of
Aguiar’s contact list. “[E]ven an erroneous evidentiary ruling will not lead to
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reversal unless affirmance would be inconsistent with substantial justice. . . . We
will not conclude that a substantial right was affected unless it is likely that in
some material respect the factfinder’s judgment was swayed by the error.” Perry v.
Ethan Allen, Inc., 115 F.3d 143, 150 (2d Cir. 1997) (internal quotation marks
omitted). Given the volume of evidence introduced at trial by the government,
any error resulting from the introduction of evidence collected from Aguiar’s cell
phone was harmless. See, e.g., United States v. Al–Moayad, 545 F.3d 139, 164 (2d
Cir. 2008) (“A district court’s erroneous admission of evidence is harmless if the
appellate court can conclude with fair assurance that the evidence did not
substantially influence the jury.”(internal quotation marks omitted)).
C. The wiretap warrant application.
The parties agree that the electronic case filing copy of the July 2, 2009
wiretap application did not contain the full and complete authorization
memorandum from the Department of Justice (“DOJ”). In the proceedings below,
Aguiar sought an evidentiary hearing to determine whether the application was
ever complete, arguing that if the court was not presented with a copy of the
entire Title III authorization memo then the July 2, 2009 wiretap was void, and
any communications obtained under its authority had to be suppressed. In
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response, the government submitted an affidavit affirming that the memorandum
submitted to the district court was complete, and any missing pages were the
result of a scanning error by the clerk’s office. The government attached to the
affidavit a copy of the complete memorandum it claimed was filed with the court,
which the district court found sufficient proof. Appellants challenge that ruling
on appeal. The government argues the district court was entitled to rely on
affidavit evidence to prove a complete memorandum was submitted by the DOJ.
We agree. The affidavit submitted to the district court attached a complete copy
of the filing that the government received from the clerk’s office, and it is unclear
what else the government could do to prove its contention that it submitted a
complete application to the court. We find no error in the district court’s refusal
to conduct a hearing.
D. Whitcomb’s motion for a judgment of acquittal, or, in the
alternative, for a new trial, based on the insufficiency of the
evidence against him.
It is well‐established that a defendant challenging the sufficiency of the
evidence “bears a heavy burden.“ United States v. Hawkins, 547 F.3d 66, 70 (2d Cir.
2008) (internal quotation omitted). “On such a challenge, we view the evidence in
the light most favorable to the government, drawing all inferences in the
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government’s favor and deferring to the jury’s assessments of the witnesses’
credibility.” Id. (internal quotation marks omitted). We must uphold the jury’s
verdict as long as “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979) (emphasis in original).
On a motion for judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29, the court must determine “whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Writers & Research, 113 F.3d 8, 11 n.3 (2d Cir. 1997)(citation omitted). The
evidence must be considered “in its totality, not in isolation, and the government
need not negate every theory of innocence.” United States v. Autuori, 212 F.3d 105,
114 (2d Cir. 2000).
On a Federal Rule of Criminal Procedure 33 motion for a new trial, the court
may grant the motion “if the interest of justice so requires.” In deciding a Rule 33
motion, the court “must examine the entire case, take into account all facts and
circumstances, and make an objective evaluation.” United States v. Ferguson, 246
F.3d 129, 134 (2d Cir. 2001). “The ultimate test . . . is whether letting a guilty
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verdict stand would be a manifest injustice.” Id. To grant the motion, “[t]here
must be a real concern that an innocent person may have been convicted.” Id.
(internal quotation marks omitted).
Whitcomb argues that the evidence at trial establishes merely the existence
of a buyer‐seller relationship, nothing more. In United States v. Parker, 554 F.3d
230, 238 (2d Cir. 2009), we held that a buyer‐seller relationship, “[w]ithout more,”
is insufficient to establish a conspiracy, because while a drug sale is a substantive
crime, it lacks a separate criminal object, necessary for the showing of a
conspiracy. Significantly, the fact that a buyer‐seller relationship exists between
co‐conspirators does not insulate a buyer from a conspiracy charge “if the facts
support such a charge.” Id. at 232. In other words, the exception “does not protect
either the seller or buyer from a charge [that] they conspired together to transfer
drugs if the evidence supports a finding that they shared a conspiratorial purpose
to advance other transfers, whether by the seller or by the buyer.” Id. at 235.
Indicia of such a relationship include repeat transactions and an indication of trust
such as by selling drugs on credit. Id. at 237.
Whitcomb does not challenge the existence of a conspiracy, but rather
argues that there is insufficient evidence to support a finding that he was a
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member of the conspiracy. Appellant failed to satisfy his burden. The evidence
adduced at trial demonstrated that Whitcomb repeatedly purchased cocaine from
Aguiar. Recorded conversations showed that Aguiar and Whitcomb were
intimates, and included evidence that Aguiar complained to Whitcomb about
problems Aguiar had collecting money from other distributors, with Whitcomb
advising him to temporarily withhold cocaine from these other conspirators in
order to give them incentive to pay their debts. We agree that much of the
evidence could be read to have an innocent meaning, but when the evidence
raises two permissible inferences then we must resolve such conflicts in favor of
the prosecution. Jackson, 443 U.S. at 319. There was no error.
CONCLUSION
We have examined the remainder of appellants’ arguments and find them
to be without merit. For the reasons given above, the judgments of the district
court are affirmed.
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