United States v. Lewis
| Decision Date | 21 June 2022 |
| Docket Number | 21-1614 |
| Citation | 38 F.4th 527 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Dewayne LEWIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David E. Hollar, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.
Eric L. Mackie, Sari M. Alamuddin, Attorneys, Morgan, Lewis & Bockius LLP, Chicago, IL, John M. Dickman, Zachary Pestine, Attorneys, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Chicago, IL, for Defendant-Appellant.
Before Easterbrook, Brennan, and St. Eve, Circuit Judges.
Dewayne Lewis appeals the denial of his motion to suppress large quantities of cash and drugs found in his hotel room. Lewis was a distributor in a drug-trafficking operation whose leader fled to Mexico. An FBI informant passed along Lewis's cell phone number, and the government obtained a tracking order pursuant to the Stored Communications Act, 18 U.S.C. § 2703(d). Cell-site location information ("CSLI") from Lewis's cell phone provider showed that his phone was within a 1,099-meter radius of Greenwood, Indiana. From there, officers searched parking lots and hotels where a deal might take place. Officers eventually saw a woman resembling Lewis's wife enter a room at a hotel, drop off a duffel bag, and drive away in a car registered in Lewis's name. After a drug-sniffing dog alerted at the room, officers applied for a search warrant, and the team executed the warrant the same day. Inside the room, officers found Lewis, $2 million in cash, and 19.8 kilograms of cocaine.
After a bench trial, the district court found Lewis guilty of possession with intent to distribute five kilograms or more of cocaine. Lewis argues that the dog sniff violated his reasonable expectation of privacy. In the alternative, he argues that the application for the § 2703(d) order lacked probable cause. Assuming that the court should have suppressed the evidence in his hotel room, Lewis further argues that the evidence presented at trial was insufficient to convict him.
We affirm. Lewis lacked a reasonable expectation of privacy in the exterior hallway of his hotel, where the dog sniff occurred. And regardless of whether the government's use of real-time CSLI amounted to a search, the good-faith exception applies. Because the district court correctly denied the motion to suppress, we do not assess the sufficiency of the remaining evidence.
Lewis reported to a man named Allan Bates. In December 2014, Bates introduced Lewis to Thomas "TJ" Boyle. Lewis drove a black Mercedes SUV to the meeting and gave Bates $125,000 in cash. Unbeknownst to Bates and Lewis, Boyle was actually an FBI informant. Boyle had agreed to provide the FBI with evidence of Bates's drug operation in exchange for working off a probation revocation. The FBI considered Boyle very reliable because his information previously led to the seizure of $400,000 from Bates's right-hand man, Larry Norton. Boyle also passed on information about a barn near Butler, Indiana, where the drug-trafficking operation stored cash and drugs in a hidden compartment.
On January 27, 2015, the FBI served search warrants in Indiana, Ohio, and Texas in connection with its investigation of Bates's operation. Bates fled, and Lewis helped him escape to Mexico. On February 1, 2015, Bates told Lewis that he and an associate, Chris Cook, needed to retrieve over $1 million and 20 kilograms of cocaine from the Butler barn. Lewis and Cook did as Bates instructed, and Lewis told Bates that there were only 19 kilograms, not the expected 20. At Bates's direction, Cook kept $60,000 in cash, and Lewis transferred the remaining cash and drugs to his car.
Meanwhile, the FBI obtained search warrants to review text messages on a phone that Bates was using in Mexico. On January 29, Bates texted Lewis and asked him to check on Boyle. Bates also told Boyle that "Nap" in Indianapolis (meaning Lewis) could help Boyle get cash and a rental car so he could flee to Texas. Crucially, Bates gave Boyle Nap's cell phone number.
Boyle passed along the cell phone number to FBI Agent Keszei. FBI Staff Operations Specialist Graff researched the number and determined that it was assigned to a Sprint phone owned by "Dewayne Lewis." The phone was pre-paid, so there was no billing address. Graff searched for Dewayne Lewises in Indianapolis and found one who was born in 1977, had a prior drug conviction, and was wanted on an outstanding warrant (the "1977 Lewis"). The 1977 Lewis is not the Defendant, who was born in 1974 and did not have an outstanding warrant at the time. Complicating matters, Boyle incorrectly identified a photograph of the 1977 Lewis as "Nap." Both the 1977 Lewis and Defendant Lewis are black.
On January 30, 2015, an officer with the U.S. Marshals' Violent Fugitive Task Force applied for and received a court order under the Stored Communications Act, 18 U.S.C. § 2703(d). The application sought precision location-based information for Nap's cell phone, including cell-site activations, "twenty-four hour a day assistance ... to triangulate target location," and "[h]istorical call detail records for 30 days," among other things. In support of the application, Officer Harshman wrote:
Applicant certifies that the information sought is relevant and material to a fugitive investigation , to wit: that the INDIANA STATE POLICE [and] US MARSHALS SERVICE are conducting an investigation to locate DEWAYNE LEWIS, a fugitive from justice. DEWAYNE LEWIS has an active warrant for a PAROLE VIOLATION on an original charge of DEALING COCAINE, IC: 35-48-4-1. On January 30, 2015, Trp. Brian Harshman was contacted by FBI S/A James Keszei reference [sic] assisting in locating and arresting DEWAYNE LEWIS. DEWAYNE LEWIS has an active warrant out of the Indiana Department of Corrections for a parole violation. S/A Keszei advised that he is currently involved in an investigation involving a drug trafficking organization in which DEWAYNE LEWIS is involved. S/A Keszei advised that during the course of the investigation it has been learned through informants and additional investigations that DEWAYNE LEWIS is utilizing a cellular telephone with an associated number of (317)507-8010. TFO Harshman was able to utilize law enforcement contacts within the Sprint Wireless Law Enforcement Compliance Department that [sic] (317)507-8010 does indeed belong to their company. Since DEWAYNE LEWIS is utilizing this cellular phone with associated number (317)507-8010, it is believed that the requested records and information will assist officers in locating and arresting DEWAYNE LEWIS.
(emphases added). On January 30, an Indiana state court judge granted the application In doing so, the judge found "that the information likely to be obtained is relevant and material to an ongoing criminal investigation."
Sprint began providing location information for the cell phone sometime on the morning of February 3, 2015. Sprint's data showed that Nap's phone was within a 1,099-meter radius (roughly two-thirds of a mile) of Greenwood, a suburb of Indianapolis. After 11:34 a.m., the phone was no longer connected to Sprint's network, possibly because the phone had been turned off. The phone reconnected to the network at 3:59 p.m. By that point, as explained below, officers had already zeroed in on Lewis's likely location. Between 3:59 p.m. and 4:21 p.m., Sprint reported that the phone was still within the same area of Greenwood, but Officer Harshman was no longer receiving email updates from Sprint. In any event, after approximately 3:00 p.m., Officer Harshman did not review the location data because he and the other officers were following another lead.
On February 3, 2015, in reliance on the Sprint location data, eight to ten Marshals' Task Force Officers checked parking lots across Greenwood for a black Mercedes SUV. They also asked clerks at five local hotels if a black male had recently checked in. Sometime after 2:00 p.m., Officer Jason York checked a police database and discovered that Defendant Lewis lived in Greenwood and had two cars registered in his name: a black Mercedes and a white Cadillac Escalade. Officer York realized for the first time, however, that there was a discrepancy between Defendant Lewis's birth year and the birth year of the man whose outstanding arrest warrant had provided the basis for the § 2703(d) order. Officer Harshman emailed FBI Task Force Officer Martinez about the discrepancy at 2:23 p.m. Officer Martinez told Officer Harshman that the date of birth in the police database might be wrong, but he was confident that the vehicle description was correct, so the Marshals should locate Lewis and take him into custody.
Around 3:00 p.m., an officer on the team learned that a "Michael Jackson" of Evansville, Indiana had checked into Room 211 of the Greenwood Red Roof Inn at 10:10 a.m. (Jackson is a real person, but Defendant Lewis had apparently checked in using his name.) Room 211 is on the second floor of the hotel and is accessible via an exterior hallway and staircase leading directly to the parking lot. Sometime after 3:00 p.m., an officer on the team saw a white Cadillac Escalade drive into the Red Roof Inn parking lot. The driver was a woman who resembled a picture of Lewis's wife from the Indiana Bureau of Motor Vehicles. A license plate check confirmed that the car was registered to Lewis. The woman took a duffel bag out of the car, brought it inside Room 211, and left the room less than five minutes later.
At 3:35 p.m., about twenty minutes after the woman left, several officers approached Room 211 and knocked on the door. No one answered. At 3:41 p.m., a K-9 handler walked a trained drug-detection dog up the exterior staircase and along the second-floor hallway. After...
To continue reading
Request your trial