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,

(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.

, 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,

(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,

(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,

(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,

(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,

(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.

. 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.

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.

. 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.”

.

The Supreme Court next addressed the issue in United States v. Karo,

(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.

. 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.”

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 . . .,”

,

; here, as we have said, the monitoring indicated that the beeper was inside the house, a fact that could not have been visually verified.

.

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,

(9th Cir. 1999)

8 abrogated by Jones,

. 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.

, 1214–15 (9th Cir. 2010),

vacated,

(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,

).

Similarly, in United States v. Garcia, the Seventh Circuit found the warrantless

attachment of a GPS device to a vehicle was not a search.

, 996‐97 (7th Cir.

2007), abrogated by Jones,

. 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.”

(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.

(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,

, 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,

(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.

(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.

(quoting Brower v. Cnty. of Inyo,

(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,

. 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,

(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.

(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,

(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,

(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,

(2009). “Indeed, exclusion has always been our last resort, not our first

impulse.“

(internal quotation marks omitted). The exclusionary rule is subject to a

good‐faith exception, crafted by the Supreme Court in Davis,

. 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,

(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,

(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.

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,

(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.”

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,

, 834‐35 (5th Cir. 2013) cert denied,

(2013); United States v. Pineda–Moreno,

, 1090‐91 (9th Cir. 2012)

cert denied,

(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,

(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,

(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,

(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,

(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.’”

at

198 (quoting Jones,

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,

(E.D. Mo. 2012)

(“holding in Davis extends only to ‘binding’ precedent”); United States v. Lee,

, 569‐70 (E.D. Ky. 2012) (limiting good‐faith exception to binding

appellate precedent); United States v. Lujan, No. 2:11CR11‐SA,

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,

(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,

(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,

(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,

(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,

.

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.”

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,

, at

* 5 (M.D. Pa. 2010); United States v. Burton,

, 1307–08 (N.D. Fla.

2010); United States v. Moran,

, 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,

(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,

, 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,

(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,

(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

23 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.,

(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,

(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

24 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,

(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

25 government’s favor and deferring to the jury’s assessments of the witnesses’

credibility.”

(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,

(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,

, 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,

(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,

(2d Cir. 2001). “The ultimate test . . . is whether letting a guilty

26 verdict stand would be a manifest injustice.”

To grant the motion, “[t]here

must be a real concern that an innocent person may have been convicted.”

(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,

(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.”

. 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.”

.

Indicia of such a relationship include repeat transactions and an indication of trust

such as by selling drugs on credit.

.

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

27 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,

. 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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