918 F.3d 190
1st Cir.2019Background
- Federal agents investigated Carey Ackies (NY resident) for narcotics distribution reaching Maine after cooperating witnesses (CD1, CD2) identified a source known as "Boyd," provided phone numbers (TT1, TT2), and described meetings and deliveries.
- Maine magistrate judges issued two precise location information (PLI) warrants under the Stored Communications Act (18 U.S.C. § 2703) directing AT&T to provide real-time/precise location data for TT1 and TT2, leading to location fixes and Ackies’s arrest.
- At suppression hearings, officers testified about informant corroboration (texts/calls, surveillance, vehicle registration) and seizure of drugs from an associate at a Portland bus terminal. District court denied suppression of PLI-derived evidence and of evidence from the warrantless arrest.
- At trial, cooperating witnesses and agents identified Ackies as "Boyd," voice-identifications were admitted (transcripts used as aids), rebuttal testimony from a Pretrial Services Officer impeached defense testimony, and a jury convicted on conspiracy and possession-with-intent counts.
- At sentencing the PSR estimated marijuana-equivalent drug quantity giving a base offense level 30 and applied a 4-level aggravating-role enhancement under U.S.S.G. § 3B1.1(a); the court imposed concurrent 230-month terms.
Issues
| Issue | Ackies' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether cell-phone PLI is a "tracking device" requiring § 3117 warrants | Cell phone location monitoring is a tracking device; § 3117 applies | PLI warrants properly issued under the SCA (§ 2703); § 3117 targets installed physical devices | Not a § 3117 tracking-device warrant; SCA warrants were appropriate |
| Whether Rule 41(b) barred a Maine magistrate from issuing warrants for out-of-district phones | Rule 41(b)'s venue/authority limits render the Maine warrants jurisdictionally void | § 2703(a) incorporates only procedural Rules; Rule 41(b) venue limits do not apply to SCA warrants; even if they did, good‑faith exception applies | Rule 41(b) does not bar § 2703 warrants; in any event Leon good‑faith exception saves the evidence |
| Probable cause supporting PLI warrant for TT1 | Affidavit relied heavily on unreliable informant (CD1); insufficient corroboration | CD1 had verifiable history, first-hand details, corroborative texts/calls, officer training/experience supporting probable cause | Probable cause existed under totality of circumstances; magistrate’s finding and denial of suppression affirmed |
| Sentencing enhancements: drug-quantity and aggravating-role (§ 3B1.1) | Drug-quantity estimates and counting CD1 as conspirator were unreliable; enhancements improper | PSR and testimony supported reasonable drug-quantity estimates and at least five participants; Ackies organized/led others | District court’s drug-quantity and role-in-offense findings affirmed (no clear error) |
Key Cases Cited
- United States v. Berkos, 543 F.3d 392 (7th Cir.) (held SCA procedures govern certain location data warrants; distinguished tracking-device statute)
- United States v. Bansal, 663 F.3d 634 (3d Cir.) (similar treatment of SCA vs. tracking-device and Rule 41 issues)
- United States v. Leon, 468 U.S. 897 (Sup. Ct.) (establishes good-faith exception to exclusionary rule)
- United States v. Levin, 874 F.3d 316 (1st Cir.) (applies Leon good-faith exception to Rule 41 venue issues for network investigative warrants)
- Carpenter v. United States, 138 S. Ct. 2206 (Sup. Ct.) (Fourth Amendment principles for cell-site location records; distinguished from treating phones as § 3117 "tracking devices")