7th Circuit: Convicted heroin conspiracy leaders lose suppressed evidence argument

Two men at the top of a heroin drug conspiracy were unable to sway the 7th Circuit Court of Appeals in a Friday decision to reconsider granting their motion to suppress evidence.

Members of the 7th Circuit panel affirmed the U.S. District Court for the Northern District of Indiana in the case of USA v. David Gibson and Jerry Harris, 20-1236 & 20-2234, after it denied David Gibson and Jerry Harris’ motion to suppress evidence found as a result of three court orders that allowed law enforcement to use real-time GPS location data for their drug scheme.

The data stemmed from a phone number provided to South Bend police by an informant supposedly used by drug dealers in the area to sell drugs. Officers then carried out a dozens of controlled buys using the number in which confidential informants or undercover officers called the number and followed instructions to buy heroin.

Relying on those controlled buys, officers submitted an affidavit to a state court judge requesting an order for the phone’s service provider to share 30 days of precise, real-time GPS location data for the phone. After granting the order, two similar affidavits were also granted to law enforcement authorizing an additional 60 days of real-time tracking.

That led to the arrest of Gibson and Harris – leaders of a drug-trafficking conspiracy who were later federally indicted for conspiring to distribute heroin.

Before their consolidated trial, the district court denied their motion to suppress evidence obtained through the cellphone tracking and it treated the state court orders as valid search warrants for the tracking. A jury ultimately convicted both Harris and Gibson of conspiring to distribute one kilogram or more of heroin. At sentencing, the district court found that they had conspired to distribute a total of 10.5 kilograms of heroin. Gibson, 47, was sentenced to 240 months’ imprisonment while Harris, 38, was sentenced to 262 months.

On appeal, the men contested the district court’s denial of their motion to suppress. Specifically, Harris challenged the drug-quantity calculations at trial and sentencing, the court’s limits on his cross-examination of the cooperators at trial, and his sentence.

But the 7th Circuit affirmed, finding the district court’s ruling to be “well reasoned” across the board. Addressing the defendant’s cell-phone tracking argument, the 7th Circuit found that the court orders in the case satisfy the requirements for a search.

“The district court correctly denied the defendants’ motion to suppress. We need not address the government’s alternative arguments that the good-faith exception applies, and that the defendants lack ‘standing’ to challenge the cellphone tracking. We note, however, that an officer’s reliance on a warrant presumptively establishes that the officer acted in good faith in carrying out a search,” Circuit Court Judge Amy St. Eve wrote.

“Moreover, we are skeptical that either defendant has standing to challenge the cellphone tracking. There was no evidence at the suppression hearing that either defendant personally possessed or used the -5822 phone during the 90-day tracking period. The defendants maintain that the government conceded the defendants’ possession of the phone. But even if that is true, the evidence from trial suggests that the defendants had, at most, on-and-off possession of this cellphone that approximately two dozen drug dealers shared to sell drugs. And there is no evidence that either defendant ever used the phone for personal, rather than commercial, purposes,” St. Eve wrote.

“Just as drug dealers who briefly occupy stash houses while packaging drugs lack a legitimate expectation of privacy in the stash houses, the defendants here would seem to lack a legitimate expectation of privacy in the whereabouts of a shared drug phone,” the panel concluded.

Moving to Harris’ specific issue with the drug-quantity calculations at trial and his sentencing, the 7th Circuit noted that the government offered the jury two independent ways to find that Harris conspired to distribute and that he challenged only one of those methods.

As to his argument on the sentencing side, the panel found the district court properly relied on the evidence in the record to conservatively calculate the drug quantity and that its calculation was not clear error.

Additionally, the 7th Circuit found that the district court did not improperly constrain his cross-examination of cooperating witnesses and that his sentence was “was well within the range of reasonable sentences.”

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