FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. George Z. Singal, U.S. District Judge]
Jonathan I. Edelstein, with whom Edelstein & Grossman was
on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney,
Appellate Chief, with whom Halsey B. Frank, United States
Attorney, was on brief, for appellee.
Lynch, Selya, and Boudin, Circuit Judges.
found Carey Ackies guilty of two counts of conspiracy to
possess and possession with intent to distribute heroin and
cocaine base. Though Ackies resided in New York, he
distributed the drugs through his network up to Maine, where
many of the key facts take place. He was sentenced to 230
appeal challenges: denials of motions to suppress two
warrants obtained by law enforcement and evidence obtained
from his warrantless arrest, evidence rulings at his trial,
and his sentence.
affirming, we reject his arguments that there was error in
the issuance of precise location information warrants
("PLI warrants") by a magistrate judge in Maine on
a finding of probable cause, which allowed monitoring of the
locations of Ackies's two cell phones. We hold that the
PLI warrants were properly issued under the Stored
Communications Act (SCA), 18 U.S.C. §§ 2701 et
seq. Our holding on this issue is like those of the
Seventh and Third Circuits. United States
v. Berkos, 543 F.3d 392, 396-98 (7th Cir.
2008); United States v. Bansal,
663 F.3d 634, 662 (3d Cir. 2011).
reject the argument that the cell phones were tracking
devices under 18 U.S.C. § 3117, and that the PLI
warrants violated Rule 41(b) of the Federal Rules of Criminal
Procedure. We also hold, in accord with our decision in
United States v. Levin, 874 F.3d
316 (1st Cir. 2017), and the views of four other circuits,
that the good-faith exception to suppression could apply in
any event. We also approve the use of rebuttal testimony from
a Pretrial Services Officer to impeach a witness.
up the background for the legal issues, we summarize the
investigation and procedural history briefly in this section.
Additional facts and statutory background are provided later
where necessary. Law enforcement began investigating Ackies
in the fall of 2015, beginning with information from a
cooperating witness who became a cooperating defendant
("CD1") concerning his drug trafficking with a man
he knew then as "Boyd" (determined at trial to be
Ackies). In January 2016, the government applied for and
received PLI warrants from a magistrate judge in Maine
pursuant to a provision of the SCA, 18 U.S.C. § 2703,
and Fed. R. Crim. P. 41 ("Rule 41") for two cell
phones, Target Telephone 1 ("TT1") and Target
Telephone 2 ("TT2"). This led to other confirming
information. Ackies was arrested in January 2016 and charged
in February 2016 with violations of 21 U.S.C. §§
846 and 841(a)(1), conspiracy to possess and possession with
intent to distribute heroin and cocaine base.
Suppression Motions after the Investigation and
filed six pretrial motions in March 2017, in part to suppress
evidence obtained from the issuance of the two PLI warrants
and pursuant to his warrantless arrest. He alleged that both
warrants were void and that one lacked probable cause.
two-day evidentiary hearing, the court credited the testimony
of Maine State Police Sergeant Thomas Pappas, who testified
that in the fall of 2015, he received information from CD1
(then under indictment for drug trafficking offenses), that
CD1 had been dealing and transporting cocaine base,
oxycodone, and heroin obtained from a source CD1 knew as
"Boyd" in New York City. CD1 provided a cell phone
number (TT1) that belonged to "Boyd," and
identified "Boyd's" vehicles. CD1 told Pappas
that he had exchanged drugs for cash at a bus terminal in
Portland, Maine and had met "Boyd" on several
then obtained a warrant for TT1 under 18 U.S.C. §
2703(c)(1)(A) and Rule 41 based on his affidavit recounting
this information. The January 15, 2016, PLI warrant directed
AT&T to provide "specific latitude and longitude or
other precise location information" for TT1 for thirty
days; AT&T did so. The information showed that TT1 was in
a building on 154th Street in Jamaica, New York on January 17
and 18, 2016. Also on January 18, Pappas intercepted
incoming calls and text messages on CD1's phone from a
number that would later be surveilled as TT2. Pappas
recognized "the same voice of the incoming caller [as on
TT1] telling [CD1] to get ready and that he would be there at
8:00." Pappas confirmed that a bus from Boston was due
in Portland at 8:00 a.m. and told CD1 to meet agents there.
CD1 recognized one of bus passengers as "Mike," a
"runner" for and associate of
"Boyd's" whom CD1 had met. Agents arrested
"Mike" (who became Cooperating Defendant 2,
"CD2") and seized about 100 grams of cocaine base
and forty grams of heroin from him.
then cooperated with Pappas, including by providing
information about "Boyd's" residence and
vehicles. After Pappas passed this information to Drug
Enforcement Administration (DEA) agents in New York, the
agents established surveillance near 107-41154th Street and
identified Ackies, a potential suspect (though they did not
see Ackies enter or leave this address). The DEA agents sent
a booking photograph of Ackies to Pappas, and he showed the
picture to CD1 and CD2. CD2 identified Ackies, the individual
in the photo, as CD2's source for the heroin and cocaine
base. CD1 "said that picture looked meaner than . . .
Boyd in person" but did not say that the picture was not
of the person he knew as "Boyd."
January 19, 2016, Pappas and other agents conducted
surveillance at 107-41154th Street. Pappas observed a Nissan
Quest van that was registered to "Tyree Ackies."
CD2 had told Pappas that Ackies owned a Nissan Quest.
January 20, 2016, DEA Task Force Officer Brian Nappi obtained
a PLI warrant for TT2 under SCA § 2703(c)(1)(A) and Rule
41. Nappi's application stated that CD1 had notified
"Boyd" on January 19 that CD1 would be driving to
New York the next day. The precise location information
obtained for TT2 placed TT2's location in the same area
as the 154th Street location where TT1 had been located
earlier. Precise location information from the evening of
January 20 showed TT2 "moving down Liberty Avenue,"
and government agents followed its location to a parking lot,
observed the Nissan Quest van, and arrested Ackies. Ackies
was questioned after his arrest and, according to Pappas,
stated that he lived at 107-41154th Street, Jamaica, New York
with Taylor, their children, and his nephew.
Denial of Motions to Suppress
order issued on July 26, 2017, the district court denied the
three now-appealed motions to suppress, finding:
(1) There was adequate probable cause for the PLI warrant for
TT1, even though "the bulk of the information supporting
probable cause came from an informant, CD1, who had at times
misled the Government," and even without probable cause,
the good-faith exception to the exclusionary rule discussed
in United States v. Leon, 468 U.S.
897, 899 (1984), would apply, United States
v. Ackies, No. 2:16-CR-20-GZS, 2017 WL
3184178, at *7-*8 (D. Me. July 26, 2017);
(2) The two PLI warrants were properly issued under 18 U.S.C.
§ 2703 rather than the "tracking device"
provision at § 3117, and assuming arguendo a violation
of Rule 41(b)'s geographic limitations had occurred, the
good-faith exception applied, id. at *8-*14;
(3) Ackies's warrantless arrest was supported by probable
cause, id. at *14.
case proceeded to trial, and conviction.
began on November 27, 2017, and lasted four days. Much of the
testimony was similar to that at the suppression hearings,
though the prosecution expanded on several aspects, including
explaining the role of Ackies's nephew (Christopher
Sampson) and an unnamed "fat guy" involved in the
drug distribution. In short, the prosecution presented a case
that: "Boyd" was Ackies and Ackies was a speaker on
recorded phone calls with CD1 and was the person who had met
and directed CD1, CD2, and others in drug trafficking and
distribution; and Ackies lived at the 154th Street apartment
where surveillance had led to his arrest. At trial, both CD1
and CD2 testified and identified Ackies in court and both
identified a voice on the calls as belonging to
defense argued that Ackies was not "Boyd" and so
was not the person on TT1 communicating with CD1, nor the
person who had met and directed CD1 and CD2, and that he did
not live at the 154th Street apartment. Schamia Taylor and
Celia Lopez, the mother of one of Ackies's children,
testified on his behalf. Taylor testified, as at the
suppression hearing, that she was living in the 154th Street
apartment but Ackies was not; Lopez testified that she had a
romantic relationship with Ackies, he lived with her from
2015 to the date of his arrest, and she had never seen him
enter Taylor's residence.
trial, the district court allowed the jury to have
transcripts of several recorded calls as demonstrative aids
and, based on the identification testimony, allowed to stand
the identification in these transcripts of a speaker as
"Ackies." Ackies objected to the use of his name in
the transcripts. After the close of the defense's case,
the government was allowed to provide rebuttal testimony by a
Pretrial Services Officer regarding statements made by Taylor
to him. Ackies challenged this. The district court allowed
the testimony as proper rebuttal. The jury found Ackies
guilty as charged on both counts.
describe only the facts from sentencing pertinent to this
appeal. The revised presentence investigation report
("PSR") stated a Base Offense Level
("BOL") of thirty due to a drug quantity of 2155.97
kilograms of marijuana equivalency and, among other
enhancements, a four-level "aggravating role"
enhancement pursuant to U.S.S.G. § 3B1.1(a).
objected to portions of the PSR, including the drug quantity
calculation and the "aggravating role" enhancement.
The district court determined that the PSR's estimate of
drug quantity and its "aggravating role"
enhancement should be accepted. The district court then
imposed concurrent sentences of 230 months' imprisonment
on each count, down from the guideline sentencing range of
292 to 365 months' imprisonment. This appeal followed.
Challenge to the Denial of Three Suppression Motions
reviewing the denial of a suppression motion, we assess the
district court's factfinding for clear error, and review
legal questions (such as probable cause and reasonable
suspicion) de novo. See, e.g., United
States v. Gates, 709 F.3d 58, 61-62
(1st Cir. 2013). We "may affirm [the] suppression
rulings on any basis apparent in the record." United
States v. Arnott, 758 F.3d 40, 43 (1st
Issuance of the PLI Warrants
argues that the PLI warrants for TT1 and TT2 were
"jurisdictionally void on two grounds": that a cell
phone used to track a person's movements is a
"tracking device" under 18 U.S.C. § 3117 (the
section addressing the issuance of warrants and orders for
the installations of mobile tracking devices), and that
geographic, jurisdictional limitations in Rule 41(b) barred
the Maine magistrate judge from issuing the PLI warrants for
phones located outside Maine. He also argues that the warrant
for TT1 was not supported by probable cause. These arguments
Applicability of the Stored Communications Act
PLI warrants here were issued pursuant to provisions in the
SCA, specifically 18 U.S.C. §§ 2703(a) and
2703(c)(1)(A), and Rule 41. Ackies argues that this was
improper under Carpenter v. United
States, 138 S.Ct. 2206 (2018). He incorrectly reads
Carpenter and argues it holds that "a cell
phone constitutes a 'tracking device' . . . when it
is used to obtain precise location information regarding a
suspect." So, he argues, such a warrant must be issued
under 18 U.S.C. § 3117 ("Mobile tracking
devices") to be valid.
Carpenter, the Supreme Court held that
"acquisition of . . . cell-site records . . . was a
search under [the Fourth] Amendment,"
Carpenter, 138 S.Ct. at 2223, and that
"[w]hether the Government employs its own surveillance
technology . . . or leverages the technology of a wireless
carrier, . . . an individual maintains a legitimate
expectation of privacy in the record of his physical
movements." Id. at 2217. The government does
not argue otherwise here. Carpenter mentions the
term "tracking device" only once -- referring to a
traditional GPS tracking device installed on a vehicle.
Id. at 2215. Section 3117, concerning tracking
devices, is never mentioned in the opinion. See generally
id. The Supreme Court's general analogy of
historical "cell phone location information" to
"GPS monitoring" is not a holding that a cell phone
is a "tracking device" under an unmentioned
statute. Id. at 2215-16.
Ackies is wrong in attacking the district court's
determination regarding warrants by citing to
Carpenter's statement that "an
order issued under § 2703(d) of the Act is not
a permissible mechanism for accessing historical cell-site
records." Id. at 2221 (emphasis added). Section
2703 treats warrants and orders differently. See 18
U.S.C. § 2703. Here, the warrants were issued under
from Carpenter, Ackies attempts to argue from the
definition of a "tracking device" in § ...