854 F.3d 163
2d Cir.2017Background
- Roger Key, a high-level Bronx/Upper Manhattan cocaine distributor, was tried and convicted for narcotics offenses and a conspiracy to commit murder-for-hire (targeting Terry Harrison) after a jury trial in S.D.N.Y.; he received life plus additional years.
- The murder-for-hire scheme: Matthew ("Matt") Davis recruited Kevin Wilson to kill Harrison; Wilson was armed, guided to the victim, shot Harrison, and shortly after was paid $1,000 by Key, who thanked him for "handling that situation." Wilson testified he expected to be "held down, given money, looked out for."
- Law enforcement surveilled Key in 2012; on August 6 agents stopped a Toyota Sienna after observing suspicious behavior and a green bag later found to contain $10,000; agents also observed other items in the car and linked the plate to Key. Key was arrested September 19 in his apartment.
- During the apartment arrest FBI agents seized multiple cell phones, an iPad, an address book and cash after Key verbally consented to a search for firearms/drugs; agents later obtained a warrant to search electronic devices. Key moved to suppress evidence from the August car stop/search and the September apartment search.
- The district court denied suppression; at trial the government introduced witness testimony (including Wilson), wiretap and phone records, and physical evidence; Key appealed, arguing insufficient evidence of the required "pecuniary value" element for §1958 conspiracy and Fourth Amendment errors in the searches. The Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of pecuniary-value element for murder-for-hire conspiracy (18 U.S.C. §1958) | Government: testimony and post-shooting payment show an understanding that Wilson would be paid; circumstantial evidence and Key's role support intent to pay. | Key: Wilson's testimony was vague about compensation; post-hoc payment insufficient to prove an agreement to pay; no proof Key knew of plan or agreed to pay. | Affirmed. Jury could infer a quid-pro-quo: pre-shooting discussions, Key's presence during planning, and Key's payment after the murder supported pecuniary-value and conspiracy intent. |
| Legality of August 6 car stop/search (automobile exception & inventory/inevitable discovery) | Government: agents had probable cause (observed package, suspicious conduct, high-speed flight); automobile exception authorized search; inventory search would have revealed other items inevitably. | Key: warrantless search of passenger compartment was unconstitutional; evidence from rear area tainted by unlawful search. | Affirmed. Court credited agents' observations and flight as supporting probable cause; inventory/inevitable discovery justified discovery of items in rear. |
| Legality of September 19 apartment seizure (plain view of electronic devices) | Government: agents lawfully present, had months of investigation showing use of multiple phones in conspiracies; incriminating character of phones/address book was immediately apparent to experienced agent. | Key: ubiquity of phones makes them non-incriminating per se; seizure without warrant improper. | Affirmed. Given investigative context and agent expertise, seizure under plain-view was justified; devices were later searched pursuant to a warrant. |
Key Cases Cited
- United States v. Frampton, 382 F.3d 213 (2d Cir. 2004) (defines pecuniary-value requirement for §1958 and limits vague promises of "favors")
- United States v. Hardwick, 523 F.3d 94 (2d Cir. 2008) (discusses quid-pro-quo requirement under §1958)
- United States v. Ross, 456 U.S. 798 (Sup. Ct.) (automobile-exception scope: search of all parts of vehicle where probable cause exists)
- Pennsylvania v. Labron, 518 U.S. 938 (per curiam) (automobile exception: probable cause to search vehicle containing contraband)
- Riley v. California, 134 S. Ct. 2473 (Sup. Ct.) (recognizes pervasiveness of cell phones; relevant to expectations of privacy and evidentiary value of phones)
- United States v. Navas, 597 F.3d 492 (2d Cir. 2010) (warrantless searches presumptively unreasonable; discusses automobile exception)