United States Court of Appeals For the First Circuit
No. 18-1643
UNITED STATES OF AMERICA,
Appellee,
v.
ILIR BREGU,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Lynch, Selya, and Lipez, Circuit Judges.
Joseph B. Simons for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, and Adam Sandel, Harvard Law School, were on brief, for appellee.
January 24, 2020 LIPEZ, Circuit Judge. Between March and July of 2015,
federal law enforcement officers executed a series of five search
warrants as part of an investigation into an oxycodone-
distribution conspiracy involving appellant Ilir Bregu. The
officers obtained precise location data for Bregu's cell phones
and recovered a large amount of cash stored in a hidden compartment
in Bregu's Lincoln Town Car, confirming the government's theory
that Bregu was the New York-based oxycodone supplier for his co-
conspirators' Massachusetts operation. Bregu moved to suppress
this evidence on the basis that the first warrant for cellular
location data, which served as the foundation for all four
subsequent warrants, was not supported by probable cause. He also
argued that even if there was probable cause for the first warrant,
the warrant for his vehicle was independently inadequate. After
the district court denied the suppression motion, a jury convicted
Bregu of conspiracy to possess with intent to distribute and to
distribute oxycodone, in violation of 21 U.S.C. § 846.
On appeal, Bregu asserts that his conviction must be
vacated because the court improperly admitted the challenged
evidence. Finding no error in the district court's suppression
ruling, we affirm Bregu's conviction.
- 2 - I.
A. Factual Background
When evaluating the denial of a motion to suppress, we
present the facts as supportably found by the district court. See,
e.g., United States v. Pontoo, 666 F.3d 20, 24 (1st Cir. 2011).
1. First Warrant for Cell Phone Location Data
On March 20, 2015, the government submitted materials to
a magistrate judge in support of an application for a search
warrant and orders pursuant to the Stored Communications Act, 18
U.S.C. § 2703,1 to obtain location data for Bregu's cell phone with
a number ending in 5912. Specifically, the application requested
(1) "precise location information" including, but not limited to,
"E-911 Phase II data," for a prospective period of thirty days;
and (2) "cell site location information" ("CSLI"), identifying
"the antenna tower receiving transmissions from the Target
Telephone and information, if available, on what portion of that
tower is receiving a transmission at the beginning and end of a
particular telephone call made from or received by the Target
Telephone," for a prospective period of sixty days. FBI Special
Agent Jason Costello's affidavit in support of the application
detailed the investigation into Bregu, which commenced in July
1 The Stored Communications Act permits the government to compel telecommunications providers to disclose certain phone records in connection with an ongoing criminal investigation. See 18 U.S.C. § 2703.
- 3 - 2012 after a confidential informant ("CI-1") reported that Bregu
and an individual named Floart Mino were selling prescription
narcotics, including oxycodone, which they acquired from a source
in New York and transported by car to Massachusetts.
Costello's investigation of Bregu and Mino led him to
three other individuals: Alwyn Kalligheri, Manuele Scata, and
Mario Scata. Kalligheri was arrested and charged with possession
with intent to distribute oxycodone in 2013. In his post-arrest
interview, Kalligheri informed law enforcement that he sold pills
out of the auto repair shop where he worked in East Boston called
D&M Auto Doctor ("D&M"), with the knowledge and consent of the
owner, Manuele Scata. Kalligheri stated that Mino was his
supplier, and Mino's source was based in New York.
Several months later, a second confidential informant
("CI-2") informed Costello that Mario Scata had been illegally
selling pills for years and continued to do so. Agent Costello
determined that Mario Scata was Manuele's father and that Mario
frequently spent time at D&M. Phone records also revealed that
Kalligheri, Mino, Manuele, and Mario all had direct phone contact
with each other in the months prior to Kalligheri's arrest.
The FBI then installed a court-authorized pen register
on Mario's phone, which allowed the government to review the phone
numbers of incoming calls, and a pole camera outside the Scata
residence in Revere, Massachusetts, where Mario resided in the
- 4 - basement apartment and Manuele resided in the second-floor
apartment. Footage from the pole camera obtained in January 2015,
along with periodic FBI surveillance of the Scata residence,
revealed vehicle traffic consistent with street-level drug
trafficking: individuals would park near the residence, walk to
Mario's basement apartment, and then return to their vehicles a
minute or two later and depart the area. According to Agent
Costello, these transactions seemed to occur only when Mario's car
was in the driveway.
Less than a month later, FBI agents observed Bregu
visiting the Scata residence. His black Lincoln Town Car with New
York license plates pulled into the driveway on February 3, 2015,
while Mario was home. Agent Costello tracked the car when it
departed approximately forty minutes later, traveling west toward
New York on the Massachusetts Turnpike, and confirmed that Bregu
was the driver and sole occupant. A review of Mario's phone
records also revealed that shortly before Bregu arrived at the
Scata residence, Mario received a short incoming call from a phone
number ending in 5912, which Costello determined was Bregu's cell
phone.
Later that month, a third confidential informant ("CI-
3") reported to the FBI that Mario illegally sold pills to
customers out of his residence, while Manuele sold pills out of
D&M. To corroborate CI-3's story, Costello arranged for CI-3 to
- 5 - make a controlled purchase from the Scatas. In late February and
early March 2015, CI-3 successfully executed two controlled
purchases of oxycodone from Mario's basement apartment.
CI-3 also told Costello that Mario's source of pills was
an individual based in New York. Costello inferred that Mario's
supplier was likely Bregu. He attempted to verify that suspicion
by reviewing Mario's phone activity and the pole camera footage,
which revealed that on five other occasions between late January
and early March 2015, Bregu's Town Car visited the Scata residence.
Each visit was preceded by a brief phone call to Mario from the
5912 number. Costello concluded that these visits were likely for
the purpose of delivering pills to Mario.
In addition to recounting the foregoing investigation,
Costello's affidavit in support of the warrant application
described his relationship with each of the three confidential
informants. He stated that he knew the identity of all three
informants and had debriefed each of them. He also acknowledged
that CI-1 had been federally charged with distribution of cocaine
about a year after he provided the tip about Bregu to the FBI;
however, CI-2 was a local police informant, and CI-3 had a history
of reliable reporting for both the FBI and Massachusetts State
Police. Costello concluded that the information in the affidavit
established "probable cause to believe that Ilir BREGU uses the
Target Telephone in furtherance of the Target Offenses." Agreeing
- 6 - that there was probable cause, a magistrate judge approved the
application and issued the requested orders and warrant on March
20, 2015. That same day, the FBI began receiving precise location
information for the 5912 number.
2. Subsequent Warrants for Cell Phone Location Data
Over the next several months, the FBI also sought and
received authorization to obtain precise location information for
two other cell phones used by Bregu. Those applications were based
on the same particulars of the investigation articulated in the
first warrant application for the 5912 number, but each one also
averred that the phone number from the preceding warrant was no
longer in use and that Bregu had begun using a new cell phone for
communications about drug deliveries. Thus, in total, four
analogous warrants for cell phone location data were issued: the
first for the 5912 number, the second for an 8432 number, the third
for an 0979 number, and the fourth extending the authorized time
period to collect location data for the 0979 number.
3. Vehicle Warrant
On July 14, 2015, the government submitted an
application for a fifth warrant -- this time, to search Bregu's
Lincoln Town Car.2 Agent Costello's affidavit in support of the
application attached and incorporated by reference the most recent
2 The application also sought warrants to search the Scatas' apartments and Manuele's Chevrolet Tahoe.
- 7 - application for location information for the phone number ending
in 0979, which included the facts described above.
The application also contained additional facts not
included in the first cell phone warrant application, some of which
had been added to the applications for the third and fourth cell
phone warrants. It stated that CI-3 had executed three additional
controlled purchases from Mario's apartment in March and April
2015. During that time, agents also observed Bregu making four
more trips from New York to the Scata residence in his Town Car.
Each time, Bregu would enter Mario's basement apartment and leave
approximately thirty minutes later. Pole camera footage showed
that Manuele went down to Mario's basement apartment shortly before
each of Bregu's suspected pill deliveries, except on two occasions,
when Manuele instead handed off a plastic bag to Mario in advance
of Bregu's arrival.
The application also described anomalous activity
observed in the pole camera footage on April 19, 2015, leading
Costello to believe that the pole camera had been detected by the
Scatas.3 After that date, Bregu and the Scatas continued to meet
3 Agent Costello stated that on April 19, 2015, Manuele was observed working in, on, or near a travel trailer adjacent to his driveway, where he was not within the visible range of the pole camera. Then, two men arrived at the residence in a red sedan and walked around to the far side of the trailer where they met Manuele out of the view of the pole camera. Mario arrived home several minutes later and went to the far side of the trailer as well. All four men emerged back into view of the pole camera
- 8 - regularly but changed the manner in which they did so.
Specifically, on two dates in April and May, location data from
Bregu's phone showed that he made trips to areas in Revere and
East Boston other than the Scata residence and then returned to
New York. During each trip, Bregu and Mario made contact by phone
and then Manuele left the Scata residence in his vehicle for
approximately forty-five minutes. Agents observed Manuele
shuttling plastic bags between his car and apartment after each of
Bregu's trips. Phone records and location data also indicated
that Bregu and Mario had a third meeting in May. And in mid-June,
pole camera and pen register activity suggested that Mario,
Manuele, and Bregu had another meeting away from the Scata
residence. Before and after that meeting, Manuele was observed
visiting Mario's basement apartment carrying a plastic bag or
object.
Finally, the application for the vehicle warrant
detailed a suspicious meeting between Bregu and the Scatas in early
July 2015. Just before midnight on July 7, Bregu called Mario.
Mario then called Manuele, and Manuele then left his apartment
approximately thirty-five minutes later. The two occupants of the red sedan periodically looked in the direction of the pole camera and then walked down the street towards the pole camera and out of view. They then left the premises in their red sedan. Afterwards, agents noticed that foot and vehicle traffic consistent with street-level drug trafficking "dropped off dramatically." This led Costello to believe that the pole camera had been detected.
- 9 - carrying an unidentified item and drove off. Agents followed
Manuele to his auto repair shop in East Boston, where he met with
Bregu in Bregu's Town Car. Shortly thereafter, Bregu and Manuele
left the shop in separate vehicles and agents followed them to a
gas station in Revere. Surveillance video from the gas station
showed Bregu approach Manuele while Manuele pumped gas. Bregu
pointed into the open driver's window of Manuele's car. Manuele
nodded his head, and Bregu returned to his Town Car, removed a
plastic bag from the rear seat, and walked back to Manuele's
vehicle with the bag partially covered by his jacket. Bregu
dropped the bag onto the driver's seat of Manuele's car, chatted
with Manuele briefly, and then both men drove off.
Agent Costello averred that based on the investigation
detailed above, he believed that the Town Car would contain
evidence of drug dealing. On the date of the vehicle warrant
application, pen registers showed multiple contacts between Mario
and Bregu, which suggested that a pill delivery from Bregu to the
Scatas was imminent and perhaps even scheduled for later that
night. The application thus requested authorization to search the
Town Car at any time of the day or night.
A magistrate judge issued the warrant the day it was
requested, July 14. On July 16, law enforcement officers observed
a meeting between Bregu and the Scatas at D&M. After Bregu left
the scene in his Town Car, officers pulled him over and executed
- 10 - the search warrant, recovering, among other things, $37,800 in
cash from a hidden compartment behind the dashboard.
B. Procedural History
In August 2015, a federal grand jury returned an
indictment charging Bregu, Manuele Scata, and Mario Scata with
conspiracy to possess with intent to distribute and to distribute
oxycodone, in violation of 21 U.S.C. § 846.4 Bregu moved to
suppress the fruits of the five warrants detailed above. The
district court denied the motion after a non-evidentiary
suppression hearing.
Bregu then proceeded to trial, where the government
introduced the evidence Bregu had sought to suppress, and Mario
Scata testified against Bregu. A jury found Bregu guilty and the
court subsequently sentenced him to seventy-two months'
imprisonment followed by a thirty-six-month period of supervised
release.
On appeal, Bregu argues that the district court
improperly denied his suppression motion and that, accordingly,
his conviction cannot stand.
4 The indictment also charged both Mario and Manuele Scata with possession with intent to distribute oxycodone, in violation of 21 U.S.C. § 841(a)(1), and charged Manuele with using and carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A).
- 11 - II.
A. Standard of Review
In assessing a district court's denial of a motion to
suppress, we review its findings of fact for clear error and
questions of law de novo. See United States v. Ribeiro, 397 F.3d
43, 48 (1st Cir. 2005). When the motion to suppress is based on
an allegedly deficient warrant, we give "significant deference" to
the magistrate judge's initial probable cause determination,5
reversing only if there is "no 'substantial basis' for concluding
that probable cause existed." Id. (quoting United States v. Feliz,
182 F.3d 82, 86 (1st Cir. 1999)).
B. Probable Cause for First Cellular Location Data Warrant
Bregu challenges the district court's determination that
there was probable cause for the magistrate judge to issue the
first warrant for location data for the 5912 cell phone. The
5 When the district court considered the motion to suppress, courts were in disagreement as to whether a warrant supported by probable cause was necessary to obtain precise location data for a cell phone, as opposed to the lesser showing required by the Stored Communications Act and applicable to pen registers and trap and trace devices. After the district court denied the suppression motion, the Supreme Court decided Carpenter v. United States, which held that acquisition of seven days' worth of historical CSLI requires probable cause but explicitly declined to express a view on the requirement for obtaining real-time CSLI. See 138 S. Ct. 2206, 2217 n.3, 2220 (2018). Here, the government states that "[f]ollowing the Supreme Court's decision in Carpenter, the government does not dispute that a showing of probable cause was necessary to obtain the precise location information the government sought."
- 12 - thrust of Bregu's argument on appeal is that the information
contained in Agent Costello's affidavit primarily concerned the
Scatas, not Bregu, and the only incriminating information about
Bregu came from CI-1, who was not a reliable informant. Bregu
also argues that the district court erred in failing to apply the
enumerated factors for testing probable cause in an affidavit that
relies "mainly" on information from confidential informants. See
United States v. Tiem Trinh 665 F.3d 1, 10 (1st Cir. 2011). He
asserts that proper application of those factors would have
undermined the magistrate judge's probable cause finding. We
disagree.
A warrant application must establish "probable cause to
believe that (1) a crime has been committed -- the 'commission'
element, and (2) enumerated evidence of the offense will be found
at the place to be searched -- the so-called 'nexus' element."
Ribeiro, 397 F.3d at 48 (quoting Feliz, 182 F.3d at 86). In asking
whether probable cause existed, courts look at the "totality of
the circumstances." See United States v. Rivera, 825 F.3d 59, 63
(1st Cir. 2016) (citing Illinois v. Gates, 462 U.S. 213, 238
(1983)). This approach reflects the fact that "probable cause is
a fluid concept -- turning on the assessment of probabilities in
particular factual contexts -- not readily, or even usefully,
reduced to a neat set of legal rules." Gates, 462 U.S. at 232.
- 13 - To aid this analysis in cases where a warrant application
relies "mainly" on confidential informants, we have articulated
four factors for consideration:
(1) whether the affidavit establishes the probable veracity and basis of knowledge of persons supplying hearsay information, (2) whether an informant's statements reflect firsthand knowledge, (3) whether some or all [of] the informant's factual statements were corroborated wherever reasonable and practicable, and (4) whether a law enforcement affiant assessed, from his professional standpoint, experience, and expertise, the probable significance of the informant's provided information.
Tiem Trinh, 665 F.3d at 10 (alteration in original) (citations
omitted) (internal quotation marks omitted). These factors
constitute a "nonexhaustive list," and no single factor is
indispensable. Id. Accordingly, rigid or mechanical application
of the factors is not required, and "stronger evidence on one or
more factors may compensate for a weaker or deficient showing on
another." United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir.
1996).
In this case, we cannot say that the affidavit relied
"mainly" on confidential sources, as in Tiem Trinh. See 665 F.3d
at 10. The affidavit contained exhaustive information implicating
Bregu in an oxycodone-distribution conspiracy with the Scatas,
even in the absence of CI-1's tip that Bregu was selling oxycodone.
Together, pen register data from Mario's phone combined with pole
- 14 - camera footage from outside the Scata residence established a
pattern -- at least five times in less than three months -- in
which Bregu made brief contact with the Scatas by phone and then
traveled from New York to their home in Revere, where he stayed
for just a short period of time before driving back to New York.
That the purpose of Bregu's visits to the Scatas was to supply
them with oxycodone pills was further supported by both Kalligheri
and CI-3's statements that the supplier for Mino and the Scatas
was based in New York, not to mention the fact that CI-3
successfully executed two controlled purchases of oxycodone from
the Scatas just days after two of Bregu's brief visits.
However, we also do not read the district court's opinion
as neglecting the Tiem Trinh factors. By noting that all three
confidential informants were known to Agent Costello and that he
debriefed each of them, as well as detailing the means by which
their information was corroborated, the district court effectively
addressed several of the factors and found that they tended to
establish probable cause.
We agree with this determination. Collectively, the
information in the warrant application about Bregu's pattern of
behavior, gleaned from the pole camera footage and Mario's phone
records, and supplemented by first-hand accounts from Kalligheri,
CI-2, and CI-3, served to corroborate the tip provided by CI-1.
See United States v. Monell, 801 F.3d 34, 39 (1st Cir. 2015)
- 15 - (stating that confidential informants can corroborate one
another's stories). Agent Costello's knowledge of CI-1's identity
also supported the reliability of his information because Costello
could hold CI-1 responsible if he provided false information. See
United States v. Greenburg, 410 F.3d 63, 67 (1st Cir. 2005). And
although CI-1's information was over two years old, all of the
surveillance of Bregu's interactions with the Scatas occurred in
the months, weeks, and days immediately preceding issuance of the
first cell phone warrant, supporting the ongoing accuracy of CI-
1's information. See United States v. Bucuvalas, 970 F.2d 937,
940 (1st Cir. 1992) ("Staleness does not undermine the probable
cause determination if the affidavit contains information that
updates, substantiates, or corroborates the stale material."),
abrogated on other grounds by Cleveland v. United States, 531 U.S.
12 (2000).
Accordingly, we hold that the information in the warrant
application, considered in the totality of the circumstances, was
sufficient to support a finding of probable cause to believe that
precise location data from Bregu's cell phone would provide
evidence showing that Bregu was the New York-based supplier for
the Scatas' oxycodone trade. We thus affirm the district court's
decision not to suppress the fruits of the first warrant, including
the location data gleaned from the three subsequent cell phone
warrants that relied on the first one.
- 16 - C. Probable Cause for the Vehicle Warrant
Bregu also argues that the warrant for his Lincoln Town
Car was not supported by probable cause and that the items seized
from it should have been excluded from evidence. He contends that
the information in the warrant application was insufficient to
satisfy either of the two prongs of the warrant requirement: a
showing of probable cause that (1) a crime had been committed, and
(2) the Town Car would contain evidence of that crime, i.e., the
oxycodone conspiracy. See Ribeiro, 397 F.3d at 48.
The so-called "commission" element requires little
elaboration. The application for the vehicle warrant contained
all the same background information as the application for the
first cell phone warrant -- with added incriminating information
about Bregu. It reported his four additional trips to Mario's
apartment, noted that several of his visits were preceded by hand-
offs of plastic bags from Manuele to Mario, and detailed an
encounter in which Bregu was observed removing a plastic bag from
his Town Car, hiding it under his coat, and placing it on a seat
in Manuele's car just before midnight at a gas station. These
facts amply support the magistrate judge's determination that
there was probable cause to believe that Bregu had committed a
crime.
As for the second prong -- requiring probable cause to
believe evidence of the crime would be found in the place to be
- 17 - searched -- Bregu argued before the district court and in his
opening brief that the warrant should have been issued as a limited
"anticipatory warrant." An anticipatory warrant is "a warrant
based upon an affidavit showing probable cause that at some future
time (but not presently) certain evidence of crime will be located
at a specified place." United States v. Grubbs, 547 U.S. 90, 94
(2006) (quoting 2 Wayne R. LaFave, Search and Seizure § 3.7(c)
(4th ed. 2004)).
Thus, Bregu asserted that the vehicle warrant should
have explicitly authorized its execution only during or after a
meeting between Bregu and the Scatas, as opposed to "at any time
of the day or night."6 He based this assertion on our holding in
United States v. Ricciardelli, 998 F.2d 8 (1st Cir. 1993), that an
anticipatory warrant must expressly condition its execution on the
occurrence of the triggering condition. Id. at 11-13. However,
in United States v. Grubbs, the Supreme Court overruled this aspect
of Ricciardelli. See 547 U.S. at 98. Grubbs rejected the notion
that an "anticipatory warrant" must delineate the triggering
condition on its face, holding that the Fourth Amendment's
particularity requirement does not require warrants to "include a
specification of the precise manner in which they are to be
6 Notably, the warrant was executed in precisely this fashion -- immediately after an officer observed a meeting between Bregu and the Scatas at D&M.
- 18 - executed." Id. (quoting Dalia v. United States, 441 U.S. 238, 257
(1979)).
Bregu conceded this point at oral argument, noting that
Grubbs limits any advantage he might have gained from the
"anticipatory warrant" framework. Accordingly, we evaluate the
nexus element in the familiar way, examining "whether, given all
the circumstances set forth in the affidavit . . . there [was] a
fair probability that contraband or evidence of a crime [would] be
found in a particular place." Gates, 462 U.S. at 238. The
magistrate judge's task was "simply to make a practical, common-
sense decision" based on the facts before him, and our duty "is
simply to ensure that the magistrate [judge] had a 'substantial
basis for . . . conclud[ing]' that probable cause existed." Id.
at 238-39 (ellipsis and second alteration in original) (quoting
Jones v. United States, 362 U.S. 257, 271 (1960), overruled in
part on other grounds by United States v. Salvucci, 448 U.S. 83
(1980)). In this context, "common sense says that a connection
with the search site can be deduced 'from the type of crime, the
nature of the items sought,' plus 'normal inferences as to where
a criminal would hide' evidence of his crime." Rivera, 825 F.3d
at 63 (quoting Feliz, 182 F.3d at 88).
The application for the vehicle warrant met this
requirement. All of Bregu's transactions with the Scatas involved
Bregu's Town Car. Indeed, based on FBI surveillance and the pole
- 19 - camera footage, the Town Car was Bregu's sole means of
transportation between New York and Massachusetts. Bregu never
stayed more than thirty to forty minutes when he visited the Scatas
before driving home to New York, suggesting that any contraband
delivered or received would be found in Bregu's car, as opposed to
a hotel room or some other location in the area. Most importantly,
the affidavit provided a detailed account of a surreptitious
exchange between Bregu and Manuele caught on video, in which Bregu
removed an item from his Town Car, hid it under his jacket, and
then left it in Manuele's vehicle. It also stated that on the
date of the warrant application, pen registers showed multiple
contacts between Mario and Bregu, suggesting that a pill delivery
was imminent. Thus, common sense dictates that some time within
the two weeks following the warrant application,7 Bregu would drive
his Town Car into the authorized jurisdiction (the District of
Massachusetts) and the car would contain oxycodone, U.S. currency,
cellular telephones, and/or documents describing Bregu's drug
suppliers and customers. Based on the pattern observed by the
FBI, there was probable cause to believe that Bregu was supplying
the Scatas with oxycodone and bringing it to them in his Lincoln
Town Car, which he drove every single time.
7 The warrant stated that it must be executed within fourteen days of its issuance. See Fed. R. Crim. P. 41(e)(2)(A)(i).
- 20 - We thus find that the warrant for Bregu's vehicle was
properly issued, and therefore the evidence seized from it was
properly admitted at trial. Accordingly, we affirm Bregu's
conviction.
So ordered.
- 21 -