             Case: 12-11042   Date Filed: 12/23/2013   Page: 1 of 34



                                                                       [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-11042
                          ________________________

                      D.C. Docket No. 3:11-cr-00024-MCR-2

UNITED STATES OF AMERICA,

                                                              Plaintiff - Appellee,

                                    versus

ERICK D. SMITH,
a.k.a. Erick Smith,
a.k.a. Tator,

                                                           Defendant - Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________


                              (December 23, 2013)
               Case: 12-11042      Date Filed: 12/23/2013      Page: 2 of 34


Before TJOFLAT, MARCUS and RIPPLE, * Circuit Judges.

MARCUS, Circuit Judge:

       Erick Smith seeks to overturn his conviction and 420-month sentence for,

inter alia, conspiring to distribute and possess with intent to distribute cocaine. On

appeal, Smith principally claims that the Supreme Court’s recent decision in

United States v. Jones, 132 S. Ct. 945 (2012), requires us to reverse the denial of

his motion to suppress, where the evidence in question was seized from his home

pursuant to a warrant that was partially supported by warrantless GPS surveillance.

We disagree. When the officers in this case installed GPS trackers on Smith’s

vehicles without a warrant, they acted in reasonable reliance upon this Court’s

then-binding precedent. Suppression of reliable, competent, and probative

evidence is a last resort justified only where the benefits of deterrence outweigh the

substantial social costs of exclusion. Thus, as we see it, the good-faith exception to

the exclusionary rule applies in this case, and the district court properly denied

Smith’s motion to suppress. To rule otherwise would punish the officers for the

errors of judges and would plainly fail to deter future Fourth Amendment

violations.

       Separately, Smith argues that the district court wrongfully admitted evidence

of his two prior convictions for possession of cocaine, wrongfully refused to sever
*
  Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit, sitting by
designation.
                                              2
             Case: 12-11042     Date Filed: 12/23/2013   Page: 3 of 34


his felon-in-possession charge, wrongfully considered acquitted conduct at the

sentencing phase, and violated the Sixth Amendment “as applied.” Our precedent

rejects each of these arguments. Thus, after thorough review, we affirm both the

conviction and the sentence.

                                         I.

      The relevant facts and procedural history are straightforward. Law

enforcement officers drawn from federal and local agencies suspected that Smith

transported cocaine from Foley, Alabama, for distribution and sale in Pensacola,

Florida. During their investigation, the officers collected considerable evidence in

support of their suspicions. On November 3, 2010, Special Agent Allen Davis of

the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) interviewed two

cooperating defendants (Terrance Woods and “T.P.”) at the Santa Rosa County

Jail. Both of them positively identified photographs of Smith and said that Smith

was the “primary source for cocaine” in the Lincoln Park area of Pensacola.

Woods and T.P. also explained that Smith obtained his supply of cocaine from

“Mexican males” in Foley, and both recalled that Smith “routinely” carried a

firearm in furtherance of the drug trafficking operation. Additionally, Woods

reported that he had seen Smith in possession of as much as ten kilograms of

cocaine at one time. Woods also told Special Agent Davis that he and Smith twice




                                          3
              Case: 12-11042     Date Filed: 12/23/2013   Page: 4 of 34


pooled their money for drug purchases, and that Smith sometimes provided the

cocaine that Woods later sold.

      On November 24 and 30, 2010, Special Agent Davis interviewed Smith’s

co-defendant, Telly Hill, after a search of Hill’s residence uncovered 58.5 grams of

cocaine base, 62.2 grams of cocaine hydrochloride, and over $2,600 in cash.

During those interviews, Hill positively identified a photograph of Smith and

stated that Smith supplied the cocaine powder from which Hill manufactured the

cocaine base found in his home. Hill also told Special Agent Davis that Smith was

the primary source of cocaine for the Lincoln Park and Ensley areas of Pensacola,

and that Smith obtained his supply of cocaine from “Mexican males” in Foley.

Moreover, Hill said that he had known Smith for four years and had been

purchasing cocaine from Smith for over a year. According to Hill, Smith sold Hill

cocaine, “typical[ly]” half of a kilogram, at least once and usually twice a week.

Finally, Hill noted that Smith used various vehicles in the course of his drug-

trafficking operation, including a Volvo, a white Chevrolet pick-up truck, and a red

Dodge Magnum.

      On December 26, 2010, Special Agent Davis obtained records from the

Florida Driver and Vehicle Information Database and the Escambia County

Property Tax Collector’s Office. The records reported that Smith received a 2002

white Chevrolet pick-up truck on November 18, 2009, as a gift from Brenda Gail


                                          4
               Case: 12-11042     Date Filed: 12/23/2013   Page: 5 of 34


Scott, who paid $10,940 in cash for the vehicle a few months earlier. The records

also indicated that Shameka Brooks, Erick Smith’s sister, purchased the 2005 red

Dodge Magnum for $12,299 in cash on October 14, 2010. Special Agent Davis

noted that Brooks spent more money at that time on the Magnum and other

vehicles than she earned through her employment of record. Finally, Special

Agent Davis discovered that Smith bought a 2004 blue Ford Mustang for $5,070 in

cash on August 20, 2010. Smith filed no personal income tax returns from 2008 to

2010.

        After collecting this evidence, but without seeking a warrant, the officers

installed GPS trackers on two of Smith’s vehicles. Special Agent Davis installed

the first device on the white Chevrolet truck on January 6, 2011, while the vehicle

sat in a parking lot off a public road. Detective Matthew Coverdale of the

Pensacola Police Department installed the second device on a Toyota Camry rental

car on January 10, 2011, while the second vehicle was similarly parked in a lot off

a public road. Until the officers learned on February 5, 2011 that Smith had

discovered one of the trackers, law enforcement officers relied on the GPS devices

to monitor Smith’s movements in Pensacola, Biloxi, and Foley. In addition to

facilitating more effective visual surveillance, the trackers also reported that Smith

made several trips to a location identified by a confidential informant as a “stash

house.”


                                           5
              Case: 12-11042     Date Filed: 12/23/2013    Page: 6 of 34


      On April 12, 2011, the officers asked a federal magistrate judge to issue a

warrant to search Smith’s residence at 8101 Tippin Avenue in Pensacola. The

affidavit in support of the warrant application recited all of this evidence, including

the locational information from the GPS trackers regarding Smith’s travels in

Pensacola, Biloxi, and Foley, as well as his visits to the alleged “stash house.” The

warrant was granted, and the officers conducted a search of Smith’s apartment on

April 14, 2011. In Smith’s residence, they discovered nearly ten thousand dollars

in cash, an operable Sundance Industries .25 caliber handgun, a disposable cell

phone with 19 recent calls to a co-defendant whom law enforcement also suspected

of drug trafficking, a small quantity of marijuana, and digital media seized from

Smith’s computer and camera.

      On May 17, 2011, a federal grand jury returned a five-count superseding

indictment against Smith, Hill, and a third co-defendant, Ismael A. Rodrigues.

Smith was charged with: (1) conspiring to distribute and possess with the intent to

distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846; (2)

using, carrying, or possessing a firearm in furtherance of the drug crime, in

violation of 18 U.S.C. § 924(c); (3) possessing a firearm in interstate commerce as

a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and (4 and 5) two counts

of money laundering.




                                           6
                Case: 12-11042       Date Filed: 12/23/2013       Page: 7 of 34


       After the indictment, Smith filed three relevant pretrial motions. First, he

moved to suppress all of the evidence that was seized from his residence. 1

According to Smith, the search was illegal because the government lacked

probable cause to search his home -- the warrant notwithstanding. Smith claimed

that the government showed “no probable cause which established any ties to

criminal activity,” and failed to demonstrate a “nexus of criminal activity to

connect criminal activity to the residence.” Notably, Smith’s arguments did not

address the government’s warrantless use of GPS trackers. Indeed, it was only in

his Rule 29 motion for acquittal that Smith first raised that objection, which he

later reiterated at sentencing.

       The district court denied Smith’s motion to suppress for two reasons. First,

the court found that the warrant affidavit established probable cause to search the

residence because it articulated a fair probability that relevant evidence would be

found there. The court explained that the affidavit recited (1) statements from

multiple cooperating witnesses who all confirmed that Smith led a cocaine

distribution operation; (2) financial documentation that corroborated the suspicion

that Smith led an organization that “procur[ed] illegal funds”; and (3) information

from surveillance operations that tied Smith to suspected “stash houses” and
1
 In addition to securing a warrant to search Smith’s residence, the government also applied for
and obtained a warrant to search one of Smith’s suspected “stash houses.” Smith moved to
suppress all evidence seized from that second address. But because the government said it did
not intend to introduce any evidence from the search of the second property, the district court did
not consider Smith’s motion as to that property and that search is not at issue in this appeal.
                                                7
              Case: 12-11042       Date Filed: 12/23/2013   Page: 8 of 34


known drug offenders. The court also noted that the issuing judge was justified in

considering Smith’s criminal history. Finally, the trial court concluded that the

officers had shown a sufficient “nexus” to support a finding of probable cause.

The court offered four reasons: Smith listed the apartment as his residence in the

Florida Driver and Vehicle Database; Smith’s suspected crimes took place in close

proximity to his residence; known drug offenders frequented the residence; and the

officers saw Smith traveling between the residence and the suspected “stash

houses.” Thus, considering the “totality of these circumstances,” the district court

concluded that there was a fair probability that Smith stored drugs or proceeds

from drug transactions at his residence.

      Alternatively, under United States v. Leon, 468 U.S. 897, 922 (1984), the

district court determined that the officers’ reasonable reliance on the warrant would

render the evidence admissible even if the warrant were not actually supported by

probable cause. According to the court, the record “provide[d] no basis for

concluding” that the officers did anything but reasonably rely on the search

warrant in executing the search.

      Apart from his motion to suppress, Smith’s appeal also implicates his

pretrial motion to exclude evidence of his criminal history and his pretrial motion

to sever his felon-in-possession charge. Both motions aimed to prevent the jury

from learning of Smith’s past convictions for the possession of cocaine. The


                                            8
              Case: 12-11042     Date Filed: 12/23/2013   Page: 9 of 34


district court denied the first one, finding the convictions admissible under Federal

Rule of Evidence 404(b) as probative of intent and not unduly prejudicial.

Because the jury would learn of Smith’s prior convictions at trial, regardless of

whether Smith’s felon-in-possession charge was severed, the court then also denied

Smith’s second motion as moot. In any case, the court also found that severance

was not appropriate because all of the counts were sufficiently related for joinder.

      Smith’s trial took place early in August 2011. The government introduced

several pieces of evidence that had been seized from Smith’s home pursuant to the

warrant. That evidence included the handgun that was found in a dresser in

Smith’s master bedroom, $9,988 in cash, information and call logs downloaded

from a cell phone, a gold necklace, various casino club cards, a bill of sale for the

Dodge Magnum, a small bundle of marijuana, and digital media seized from

Smith’s computer and camera. Some of the photos admitted into evidence

depicted Smith in possession of what appeared to be cocaine. Several of the videos

from Smith’s computer and camera recorded Smith making statements that he

“[was] shaking the Feds,” that he had “finally hit six figures,” that he had “20

bands straight across,” and that he carried “a .44 mag” for his “self protection.”

The court also admitted a certified copy of Smith’s 1999 State of Florida

conviction for the possession of cocaine, as well as a certified copy of Smith’s

2003 Florida conviction -- also for cocaine possession.


                                          9
             Case: 12-11042     Date Filed: 12/23/2013   Page: 10 of 34


      After hearing this and other evidence, the district court acquitted Smith on

the money-laundering charges. As for the underlying drug charge, however, the

jury found Smith guilty of conspiring to distribute or possess with the intent to

distribute 500 grams or more, but less than five kilograms, of cocaine. The jury

also convicted Smith of the felon-in-possession charge, but acquitted him of

carrying a firearm in furtherance of the drug crime.

      On August 18, 2011, Smith moved for judgment of acquittal and a new trial.

In addition to reprising his earlier arguments, Smith’s motion voiced for the first

time a Fourth Amendment objection to the government’s warrantless GPS

surveillance. In full, Smith’s objection read: “In addition to the arguments

previously raised regarding the insufficiency of the Affidavit in support of said

search, the Defendant, through counsel, would assert that said search was

additionally illegal based upon the recent case of U.S. v. Maynard, 615 F.3d 544

(D.C. Cir. 2010).” In Maynard, the D.C. Circuit held that the warrantless use of a

GPS tracker constituted an unreasonable Fourth Amendment search. 615 F.3d at

555. The district court denied the motion, relying on the reasons contained in its

prior orders and those stated orally during the trial. The court did not address

specifically Smith’s Fourth Amendment objection to the warrantless use of GPS

trackers.




                                         10
             Case: 12-11042     Date Filed: 12/23/2013   Page: 11 of 34


      The district court sentenced Smith to a within-Guidelines term of

imprisonment of 420 months, finding that: (1) a base offense level of 36 was

appropriate under U.S.S.G. § 2D1.1(c)(2), because the government had shown a

drug weight of 56 kilograms by a preponderance of the evidence; (2) a two-level

enhancement was appropriate under U.S.S.G. § 2D1.1(b)(1) because the

government had established by a preponderance of the evidence that Smith

possessed a firearm in connection with the drug offense; and (3) a further two-level

enhancement was appropriate under U.S.S.G. § 3C1.1 because Smith committed

perjury. With a criminal history category of VI, Smith’s applicable Guidelines

range was 360 months to life.

      Smith timely filed this appeal.

                                         II.

      At the heart of Smith’s case is an appeal from the denial of his motion to

suppress. Notably, in challenging that denial, Smith does not reprise the arguments

he made before the district court. More specifically, he does not assert that the

officers failed to establish probable cause or claim an insufficient nexus between

his residence and his criminal activity. On appeal, Smith’s argument is limited to

the singular claim that the officers violated the Fourth Amendment when they

searched his home pursuant to a warrant that relied at least in some measure upon

information collected from warrantless GPS surveillance. Smith argues that


                                         11
              Case: 12-11042     Date Filed: 12/23/2013     Page: 12 of 34


warrantless GPS searches are always unreasonable, that the search warrant was

invalid, and that any seized evidence the warrant yielded should have been

excluded as fruit of the poisonous tree.

      When Smith initially moved to suppress, he did not raise a Fourth

Amendment objection to the government’s warrantless use of GPS trackers.

Nevertheless, the government conceded at sentencing and again on appeal that

Smith preserved the issue for our review. Smith did eventually raise the GPS

argument before the district court -- albeit in the context of a Rule 29 motion.

Smith repeated his GPS objection in greater detail at the sentencing hearing, where

Smith’s counsel also explained why she had chosen not to raise the GPS argument

in the first place. In a colloquy with the district court, defense counsel candidly

explained that, at the time the officers installed the trackers in this case, she

believed that warrantless GPS surveillance simply “wasn’t a problem” sufficient to

merit suppression under then-binding Eleventh Circuit precedent. Under Federal

Rule of Criminal Procedure 12(e), a district court may for good cause grant relief

from a waiver of a Rule 12(b)(3) objection. See Fed. R. Crim. P. 12(e) (“A party

waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline

the court sets under Rule 12(c) or by any extension the court provides. For good

cause, the court may grant relief from the waiver.”). In this case, after engaging

with Smith’s counsel and hearing no objection from the government, the district


                                           12
             Case: 12-11042      Date Filed: 12/23/2013    Page: 13 of 34


court sought to “make the record very clear to the Eleventh Circuit that [Smith’s

counsel] ha[d] at least raised the issue with [the district court] here and [the court

was] passing on it.” Indeed, the district court specifically asked that Mr. Smith not

be punished because the GPS objection had not been properly raised. Thus, we

also consider the argument preserved and proceed to address its merits.

      “Because rulings on motions to suppress involve mixed questions of fact and

law, we review the district court’s factual findings for clear error, and its

application of the law to the facts de novo.” United States v. Jordan, 635 F.3d

1181, 1185 (11th Cir. 2011) (quoting United States v. Bervaldi, 226 F.3d 1256,

1262 (11th Cir. 2000)). We may consider any evidence that appears in the record,

not only the evidence presented at the suppression hearing. Id. Finally, we will

construe all facts in the light most favorable to the prevailing party -- here, the

government. Id.

      “Exclusion is ‘not a personal constitutional right.’” Davis v. United States,

131 S. Ct. 2419, 2426 (2011) (quoting Stone v. Powell, 428 U.S. 465, 486 (1976)).

Although the Fourth Amendment expressly protects “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures,” the Constitution does not explain how courts ought to treat evidence

seized in violation of that command. The exclusionary rule is thus “a ‘prudential’

doctrine . . . created by [the Supreme] Court to ‘compel respect for the


                                           13
             Case: 12-11042     Date Filed: 12/23/2013   Page: 14 of 34


constitutional guaranty.’” Id. at 2426 (citations omitted). In designing the

exclusionary rule, the Court did not aim “to ‘redress the injury’ occasioned by an

unconstitutional search”; rather, as the Supreme Court has “repeatedly held,” the

“sole purpose” of the exclusionary rule “is to deter future Fourth Amendment

violations.” Id. (citation omitted). “[S]uppression is not an automatic consequence

of a Fourth Amendment violation.” Herring v. United States, 555 U.S. 135, 137

(2009). Instead, exclusion is a remedy of “last resort,” justified only where the

“deterrence benefits of suppression” outweigh the “substantial social costs” of

“ignor[ing] reliable, trustworthy evidence bearing on guilt or innocence.” Davis,

131 S. Ct. at 2427 (citations omitted).

      In light of this important limitation, the suppression of competent and

probative evidence would generally not be an appropriate remedy where a Fourth

Amendment violation occurred despite a law enforcement officer’s exercise of

good faith. See, e.g., Leon, 468 U.S. at 922 (holding that exclusionary rule did not

apply when police conducted search in “objectively reasonable reliance” on a

warrant later held invalid); Illinois v. Krull, 480 U.S. 340, 349-50 (1987) (applying

good-faith exception to searches conducted in reasonable reliance on subsequently

invalidated statutes); Arizona v. Evans, 514 U.S. 1, 14 (1995) (applying good-faith

exception where police reasonably relied on erroneous information concerning an

arrest warrant in database maintained by judicial employees); Herring, 555 U.S. at


                                          14
             Case: 12-11042      Date Filed: 12/23/2013   Page: 15 of 34


147-48 (applying good-faith exception where police mistakes resulted from

“isolated negligence” by police employees, id. at 137, rather than from “systemic

error or reckless disregard of constitutional requirements,” id. at 147). As the

Supreme Court has recognized, excluding evidence in these good-faith cases

“deters no police conduct and imposes substantial social costs.” Davis, 131 S. Ct.

at 2434.

      In Davis, the Supreme Court extended the good-faith exception to embrace

“searches conducted in objectively reasonable reliance on binding appellate

precedent.” Id. at 2423-24. Suppression in such cases “would do nothing to deter

police misconduct,” id. at 2423, because police conduct is “not wrongful” when it

is “in strict compliance with binding precedent.” Id. at 2428-29. Responsible

officers learn “‘what is required of them’ under Fourth Amendment precedent” and

take care to “conform their conduct to these rules.” Id. at 2429 (quoting Hudson v.

Michigan, 547 U.S. 586, 599 (2006)). When binding precedent “specifically

authorizes a particular police practice,” moreover, officers “will and should use

that tool to fulfill” their public duties. Id. Indeed, applying the exclusionary rule

in the face of such good-faith reliance would only deter “conscientious police

work.” Id. Thus, even when a higher court subsequently overrules the precedent

at issue in a given case, courts ought not to penalize the officer for the appellate

court’s error. Id. at 2429. “‘[P]unish[ing] the errors of judges’ is not the office of


                                          15
             Case: 12-11042     Date Filed: 12/23/2013   Page: 16 of 34


the exclusionary rule,” and when the police act in reasonable reliance on then-

binding appellate precedent, the error of judges is the only constitutional mistake.

Id. at 2428 (second alteration in original) (quoting Leon, 468 U.S. at 916).

      In asking us to reverse the denial of his motion to suppress, Smith invokes

United States v. Jones, 132 S. Ct. 945, 949 (2012), which held -- after the events at

issue in this case -- that for Fourth Amendment purposes officers conducted a

“search” when they installed a GPS tracker on a suspect’s vehicle. Although the

Court concluded that such GPS searches implicate the Fourth Amendment, it had

“no occasion to consider” whether a warrantless GPS search might ever be

reasonable. 132 S. Ct. at 954. In asserting that the warrantless searches violated

his Fourth Amendment rights in this case, and in claiming therefore that evidence

seized in reliance on those searches should be suppressed, Smith would have us

resolve the difficult constitutional question left open in Jones. We decline Smith’s

invitation, however, because even if the Fourth Amendment requires an officer to

secure a warrant before installing a GPS tracker, the Davis good-faith exception

plainly would suspend the operation of the exclusionary rule in this case.

      The officers here undeniably relied on the same kind of then-binding, but

subsequently overruled, appellate precedent that was at issue in Davis. When law

enforcement officers attached the trackers in this case, in January 2011, our

precedent specifically authorized officers to install “an electronic tracking device”


                                          16
              Case: 12-11042      Date Filed: 12/23/2013      Page: 17 of 34


on a suspect’s vehicle upon a showing of reasonable suspicion. United States v.

Michael, 645 F.2d 252, 254 (5th Cir. 1981) (en banc). 2 Under Michael, the fact of

trespass did not automatically trigger constitutional concerns. See id. at 258 n.14

(“That the beeper required the DEA agents to make a technical trespass unlike the

pen register in Smith is not controlling. This slight physical intrusion is

insignificant if it infringes no privacy interest.”). Rather, our Fourth Amendment

analysis turned largely on the notion that “an individual’s expectation of privacy in

his automobile is less than in other property.” Id. at 257.

       In United States v. Knotts, 460 U.S. 276, 281 (1983), decided shortly after

Michael, the Supreme Court held that “[a] person traveling in an automobile on

public thoroughfares has no reasonable expectation of privacy in his movements

from one place to another.” Knotts therefore reached the same conclusion that the

former Fifth’s Circuit did in Michael: that the use of a beeper to track a suspect’s

movements on public roads involved “neither a ‘search’ nor a ‘seizure’ within the

contemplation of the Fourth Amendment.” Id. at 285. Because the beeper at issue

in Knotts had been concealed inside of a container that was later loaded onto the

suspect’s vehicle, however, Knotts had no occasion to consider for Fourth

Amendment purposes the trespass involved in installing an electronic tracking


2
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions issued before October 1, 1981. The former Fifth
Circuit decided Michael on May 11, 1981.
                                             17
             Case: 12-11042    Date Filed: 12/23/2013   Page: 18 of 34


device directly. Consequently, Knotts left undisturbed the holding in Michael that

that “slight physical intrusion” was “insignificant” for Fourth Amendment

purposes. 645 F.2d at 258 n.14.

      After the GPS searches at issue in this case, Jones distinguished Knotts and

rejected much of the Fourth Amendment analysis contained in Michael. In Jones,

the Supreme Court held that “the Government’s installation of a GPS device on a

target’s vehicle, and its use of that device to monitor a vehicle’s movements,

constitutes a ‘search’” within the meaning of the Fourth Amendment. 132 S. Ct. at

949 (footnote omitted). Contrary to the former Fifth Circuit’s analysis in Michael,

the Supreme Court explained that “the Katz reasonable-expectation-of-privacy test

has been added to, not substituted for, the common-law trespassory test.” Id. at

952. In installing the GPS device on Jones’s vehicle, the government conducted a

search because it “physically occupied private property for the purpose of

obtaining information.” Id. at 949.

       On the merits, the rule announced by the Supreme Court in Jones applies to

Smith’s case. “A decision of [the Supreme] Court construing the Fourth

Amendment is to be applied retroactively to all convictions that were not yet final

at the time the decision was rendered,” United States v. Johnson, 457 U.S. 537,

562 (1982), “with no exception for cases in which the new rule constitutes a ‘clear

break’ with the past.” Griffith v. Kentucky, 479 U.S. 314, 328 (1987). “Final” in


                                         18
             Case: 12-11042      Date Filed: 12/23/2013    Page: 19 of 34


this context refers to any “case in which a judgment of conviction has been

rendered, the availability of appeal exhausted, and the time for a petition for

certiorari elapsed or a petition for certiorari finally denied.” Griffith, 479 U.S. at

321 n.6. Since Jones was decided after Smith’s trial, but notably before the

availability of appeal was exhausted, the Jones rule applies here. Under that rule,

the officers in this case twice conducted warrantless searches that implicated

Fourth Amendment interests when they installed GPS trackers on Smith’s vehicles.

      Nevertheless, even if Jones would have rendered the warrantless searches in

this case unreasonable, the officers’ good-faith reliance upon Michael renders

exclusion inappropriate here. At the time of the GPS searches, Michael was

binding precedent that clearly dictated the constitutionality of warrantless GPS

surveillance. In 1981, an en banc panel of the former Fifth Circuit held that

reasonable suspicion was the appropriate standard against which to measure the

warrantless installation of an electronic tracking device on a suspect’s vehicle.

Michael, 645 F.2d at 257. A GPS tracker is an “electronic tracking device,” and at

the time the officers installed the trackers on Smith’s vehicles, they had at least

reasonable suspicion to believe Smith was engaged in criminal activity. In fact,

Smith does not dispute on appeal that the officers had reasonable suspicion. But

even if he had disputed that determination, the incriminating statements from

Woods, T.P., and Hill, together with the discrepancy between the value of Smith’s


                                           19
               Case: 12-11042       Date Filed: 12/23/2013      Page: 20 of 34


vehicles and his declared income, provided “specific and articulable facts, together

with rational inferences from those facts,” that were sufficient “reasonably [to]

warrant[] the agents in the belief” that Smith was involved in drug trafficking. Id.

at 257. 3

       Nevertheless, Smith asks us to distinguish Michael. He points specifically to

our insistence that, because the “justifications for the good-faith exception do not

extend to situations in which police officers have interpreted ambiguous

precedent,” our precedent on a given point “must be unequivocal before we will

suspend the exclusionary rule’s operation.” United States v. Davis, 598 F.3d 1259,

1266-67 (11th Cir. 2010), aff’d Davis, 131 S. Ct. 2419. Inasmuch as Michael

involved a beeper, not a GPS tracking device, Smith submits that Michael did not

“clearly dictate[] the constitutionality” of a GPS search supported only by

reasonable suspicion. Davis, 598 F.3d at 1267 n.10.

       We think Smith asks us to draw too fine a distinction. Because a GPS

device is an “electronic tracking device,” the officers in this case “followed the

Eleventh Circuit’s . . . precedent to the letter” when they installed the trackers on

3
  Indeed, even after completely excising the information derived from the warrantless search,
Special Agent Davis’s affidavit cleared the higher hurdle of establishing probable cause. Under
the “totality-of-the-circumstances,” the remaining evidence still showed a “fair probability that
contraband or evidence of a crime [would] be found in” Smith’s residence. United States v.
Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (en banc) (quoting Illinois v. Gates, 462 U.S. 213,
238 (1983)). What’s more, co-defendant Hill’s statements may have been sufficient on their own
to establish probable cause. See Craig v. Singletary, 127 F.3d 1030, 1042, 1044-45 (11th Cir.
1997) (en banc) (recognizing that probable cause may be established by a co-defendant’s
unsworn confession that he and the suspect committed the crime).
                                               20
             Case: 12-11042     Date Filed: 12/23/2013    Page: 21 of 34


Smith’s vehicles with reasonable suspicion. Davis, 131 S. Ct. at 2428. In fact,

rather than limiting the analysis to beepers, every opinion in Michael referred to

electronic surveillance in general terms. The majority opinion never discussed the

precise technological capabilities of beepers, and in fact the very first sentence of

the opinion characterized the beeper as an “electronic tracking device” before

parenthetically identifying it as a beeper. 645 F.2d at 254. The special

concurrence and both dissents similarly described the beeper in general terms. See

id. at 259 (Clark, J., specially concurring) (“I also concur in [the majority’s]

holding that no invasion of constitutionally protected privacy occurred when police

with the degree of reasonable suspicion present here attached an electronic tracking

device to [defendants’] van.”) (emphasis added); id. at 260 (Tate, J., dissenting)

(faulting the majority for permitting “a trespass that enables [officers] to maintain

continuous electronic surveillance over [the defendant’s] movements”) (emphasis

added); id. at 271 (Godbold, J., dissenting) (“The officers, by attaching the

electronic device, made the van into a mechanism for reporting to the government

its own location and necessarily the location of persons occupying it.”) (emphasis

added).

      To the extent that beepers and GPS devices employ distinct technologies and

collect different quantities of locational data, nothing in Michael required the

officers to consider the quality or quantity of information collected by a tracking


                                          21
               Case: 12-11042        Date Filed: 12/23/2013       Page: 22 of 34


device. 4 Until Jones, nothing in Supreme Court jurisprudence mandated that sort

of inquiry, either. Instead, the operative facts in Michael closely mirrored the facts

of the instant case. As here, Michael involved the (1) physical installation (2) in a

public place (3) on a suspect’s vehicle (4) of a device that would track that

vehicle’s position (5) on public roads.

       On those facts, Michael’s Fourth Amendment analysis distilled to three

points. First, the trespassory aspect of installation was not dispositive -- and, in

any event, installing a tracking device on the exterior of a vehicle in a public place

“was much less intrusive than the typical stop and frisk.” 645 F.2d at 258.

Second, because the defendant had no reasonable expectation of privacy in his

vehicle’s movements on public roads, the warrantless installation of a device to

track those movements did not trigger any Fourth Amendment concerns. Id. at

257-58. And, third, the government’s interest in eliminating illegal drug

manufacture was a “persuasive reason to permit this minimally intrusive practice.”

4
  The dissenting opinions in Michael construed the majority’s holding broadly enough to dictate
the constitutionality of continuous electronic surveillance for an indefinite period of time. See
Michael, 645 F.2d at 260 (Tate, J., dissenting) (“Sitting en banc in mini-convention of twenty-
four appellate judges, a majority of our court has decided that an individual living under our
Constitution has no reasonable expectation of privacy such as would protect him from a trespass
upon his property by governmental agents, a trespass that enables them to maintain continuous
electronic surveillance over his movements twenty-four hours per day continuously and
indefinitely.”) (emphasis added); id., 645 F.2d at 272 (Godbold, J., dissenting) (“We view with
loathing totalitarian systems that require a person traveling from one place to another to check in
with the police and report on his movements. The majority treat as trivial the privacy interest
against one’s unwittingly but continuously making the same kind of report through an electronic
device attached to the property by which he moves from place to place. I do not consider this
trivial.”) (emphasis added).


                                                22
             Case: 12-11042      Date Filed: 12/23/2013    Page: 23 of 34


Id. at 259. Applying the same analysis to the similar facts found in Smith’s case,

the same conclusion follows. Special Agent Davis and Detective Coverdale

installed the two GPS trackers on Smith’s vehicles while those vehicles were

parked in lots off a public road. There is no allegation here that the government

tracked Smith anywhere other than on public roads. And although Smith was not

indicted on drug-manufacturing charges, co-defendant Hill’s statements gave the

officers reason to suspect that the conspiracy involved both the distribution of

cocaine and the conversion of powder cocaine to cocaine base. The GPS search

was thus motivated by the government’s interest in eliminating both the

manufacture and the distribution of illegal drugs. To any reasonable officer, then,

the three prongs of Michael’s Fourth Amendment analysis dictated the

constitutionality of the search here at issue. In short, the agents relied reasonably

on what was then binding appellate precedent.

      In reaching this conclusion, we are supported by the Fifth Circuit’s identical

holding in its own post-Jones opinion construing Michael. In United States v.

Andres, 703 F.3d 828, 835 (5th Cir. 2013), the Fifth Circuit held that “[d]espite

any possible technological differences between a 1981 ‘beeper’ and the GPS

device used in this case, the functionality is sufficiently similar that the agents’

reliance on Michael to install a GPS device on [defendant’s] truck, in light of the

reasonable suspicion of drug trafficking, was objectively reasonable.” We think


                                           23
             Case: 12-11042     Date Filed: 12/23/2013   Page: 24 of 34


that holding is plainly correct; indeed, we previously reached the same conclusion

in one of our own unpublished opinions. See United States v. Smith, 387 F. App’x

918, 920-21 (11th Cir. 2010) (“In United States v. Michael, we held that the

placement of an electronic tracking device on the exterior of the defendant’s

vehicle when it was parked in a public parking lot did not violate his Fourth

Amendment rights. Smith’s argument that the installation of the GPS device

violated his Fourth Amendment rights fails because the Escalade was parked in a

place easily accessible to the public and was reachable from a public thoroughfare.

Smith had no reasonable expectation of privacy with respect to the exterior of the

vehicle.”) (citations omitted). These decisions do not constitute binding precedent,

but they provide persuasive authority to support our conclusion that Michael

unambiguously authorized the GPS searches at issue in this case.

      Moreover, in addition to the Fifth Circuit in Andres, at least two other

circuits have also applied the Davis good-faith exception where officers conducted

warrantless GPS searches in reliance upon then-binding beeper precedent. See

United States v. Sparks, 711 F.3d 58, 64-66 (1st Cir. 2013) (recognizing that the

Davis good-faith exception only applies where then-binding precedent was “clear

and well-settled,” id. at 64, but nevertheless applying the exception where officers

conducted warrantless GPS searches in reliance upon then-binding beeper cases

establishing that “using a beeper to monitor a person’s movements in a car on


                                         24
             Case: 12-11042      Date Filed: 12/23/2013   Page: 25 of 34


public roads did not implicate the Fourth Amendment,” and that “the trespass

involved in attaching a beeper to a car was, by itself, so insignificant as to be

essentially irrelevant for Fourth Amendment purposes,” id. at 65); United States v.

Pineda-Moreno, 688 F.3d 1087, 1090 (9th Cir. 2012) (applying the Davis good-

faith exception where officers conducted warrantless GPS searches in reliance

upon then-binding beeper cases establishing that “placing an electronic tracking

device on the undercarriage of a car was neither a search nor a seizure under the

Fourth Amendment,” and that “the government does not violate the Fourth

Amendment when it uses an electronic tracking device to monitor the movements

of a car along public roads”). But see United States v. Katzin, 732 F.3d 187, 208

(3d Cir. 2013)

      Finally, we note a wealth of persuasive authority suggesting that, before

Jones, courts actually did recognize Michael as binding in the GPS context.

Indeed, within this Circuit, by our count, every district court that has considered

the question ultimately concluded that Michael clearly established the

constitutionality of GPS searches supported only by reasonable suspicion. See

United States v. Dooley, No. 1:11-CR-255-3-TWT, 2013 WL 2548969, at *2

(N.D. Ga. June 10, 2013) (citing Michael) (“Detective Duncan installed the GPS

tracker on the Impala on March 15, 2011, before the Supreme Court's decision in

United States v. Jones. Prior to Jones, the Eleventh Circuit had held that a warrant


                                          25
             Case: 12-11042     Date Filed: 12/23/2013    Page: 26 of 34


was not required to install an electronic tracking device on the exterior of a vehicle

parked in a public place . . . .”) (citation omitted); United States v. Figueroa-Cruz,

914 F. Supp. 2d 1250, 1269 (N.D. Ala. 2012) (citing Michael) (“There is no

question that as of September 20th, 2011 binding Eleventh Circuit precedent

clearly established that the attachment of a ‘beeper’ tracking device to monitor the

movement of a defendant’s vehicle violated no constitutional right.”); United

States v. Lewis, No. 12-60011-CR, 2012 WL 4838889, at *2 n.1 (S.D. Fla. Oct. 10,

2012) (citing Michael) (“Prior to Jones, GPS tracking devices were treated as

beepers in the Eleventh Circuit.”); United States v. Nelson, No. CR612-005, 2012

WL 3052914, at *3 (S.D. Ga. July 25, 2012) (citing Michael) (“The record in this

case establishes that when [an officer] installed the GPS device on [defendant’s]

vehicle he relied upon established FBI policy that conformed with binding

Eleventh Circuit precedent.”), report and recommendation adopted, No. CR612-

005, 2012 WL 3835826 (S.D. Ga. Sept. 4, 2012); United States v. Rosas-Illescas,

872 F. Supp. 2d 1320, 1327 (N.D. Ala. 2012) (citing Michael) (“The good-faith

exception applies here because at the time [an officer] used the GPS tracking

device, binding Eleventh Circuit law allowed the use of such devices without a

warrant.”); United States v. Burton, 698 F. Supp. 2d 1303, 1307 (N.D. Fla. 2010)

(citing Michael) (“It is clear that the Defendant’s request for operation of the

Fourth Amendment exclusionary rule because of law enforcement’s use of a GPS


                                          26
              Case: 12-11042     Date Filed: 12/23/2013     Page: 27 of 34


tracking device on the Defendant’s vehicle to trace the Defendant’s movements

must be denied.”). Just as in Davis, the issue here was not “unsettled” in this

Circuit. 131 S. Ct. at 2435 (Sotomayor, J., concurring in the judgment). Instead,

this constellation of decisions is altogether consistent with our conclusion that

Michael established the constitutionality of warrantless GPS surveillance at the

time the officers installed the trackers.

      Thus, when law enforcement officers act “with an objectively ‘reasonable

good-faith belief’ that their conduct is lawful, . . . the ‘deterrence rationale loses

much of its force,’ and exclusion cannot ‘pay its way.’” Davis, 131 S. Ct. at 2427-

28 (quoting Leon, 468 U.S. at 908 n.6, 909, 919 (1984)). “Police practices trigger

the harsh sanction of exclusion only when they are deliberate enough to yield

‘meaningfu[l]’ deterrence, and culpable enough to be ‘worth the price paid by the

justice system.’” Id. at 2428 (alteration in original) (quoting Herring, 555 U.S. at

144). This is not a case of “deliberate,” “reckless,” “grossly negligent,” or even

negligent disregard for Fourth Amendment rights. Id. at 2427 (quoting Herring,

555 U.S. at 144); see, e.g., Weeks v. United States, 232 U.S. 383 (1914) (finding

reversible error where district court admitted evidence seized by officers who

broke into defendant’s home without a warrant, confiscated incriminating papers,

then returned with a U.S. Marshall to confiscate still more material); see also

Herring, 555 U.S. at 143 (construing Weeks as “a foundational exclusionary rule


                                            27
             Case: 12-11042     Date Filed: 12/23/2013    Page: 28 of 34


case”); Mapp v. Ohio, 367 U.S. 643 (1961) (applying the exclusionary rule where

officers forced open a door to Mapp’s home, prevented her lawyer from entering,

brandished a false warrant, forced Mapp into handcuffs, and canvassed the home

for obscenity).

      By contrast, the officers’ conduct in this case “was in strict compliance with

then-binding Circuit law and was not culpable in any way.” Davis, 131 S. Ct. at

2428. Here, where Michael specifically authorized officers to install an electronic

tracking device once they developed reasonable suspicion, we cannot discern

“appreciable deterrence” that would justify excluding the competent and probative

evidence seized from Smith’s home. Id. at 2426 (quoting United States v. Janis,

428 U.S. 433, 454 (1976)). The officers in this case were not mistaken in relying

upon Michael as binding precedent; rather, they reasonably relied upon precedent

that was, itself, mistaken on the constitutional question. But, again, “‘punish[ing]

the errors of judges’ is not the office of the exclusionary rule.” Id. at 2429

(quoting Leon, 468 U.S. at 916). And “about all that exclusion would deter” in this

case “is conscientious police work.” Id. The good-faith exception to the

exclusionary rule therefore fairly applies, and Smith’s motion to suppress was

properly denied.

                                          III.




                                          28
             Case: 12-11042     Date Filed: 12/23/2013    Page: 29 of 34


      Apart from seeking reversal of the denial of his suppression motion, Smith

also asks us to find that the district court committed a number of other errors in the

course of the proceedings. We conclude that the court committed no such errors

and accordingly affirm on each issue.

                                          A.

      First, Smith cites as error the district court’s denial of his motion to exclude

evidence of his two prior convictions for the possession of cocaine. He asserts that

evidence of those convictions was unduly prejudicial and not probative of a

material issue other than character, since the convictions occurred six and ten years

before the charged offense, and since the prior convictions were for possession of -

- not distribution of or possession with intent to distribute -- cocaine. Each of these

arguments fails.

      Federal Rule of Evidence 404(b) empowers courts to admit evidence of a

defendant’s other crimes when that evidence is used to prove, inter alia, the

defendant’s intent to commit the crime at issue. Rule 404(b) is a rule of inclusion,

and “404(b) evidence, like other relevant evidence, should not lightly be excluded

when it is central to the prosecution’s case.” United States v. Jernigan, 341 F.3d

1273, 1280 (11th Cir. 2003) (quoting United States v. Perez-Tosta, 36 F.3d 1552,

1562 (11th Cir. 1994)). There is “[a]mple precedent . . . in this circuit finding that

a not guilty plea in a drug conspiracy case . . . makes intent a material issue and


                                          29
             Case: 12-11042     Date Filed: 12/23/2013    Page: 30 of 34


opens the door to admission of prior drug-related offenses as highly probative, and

not overly prejudicial, evidence of a defendant’s intent.” United States v.

Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997). This may be true even where the

prior conviction is many years old. See United States v. Lampley, 68 F.3d 1296,

1300 (11th Cir. 1995) (finding admissible evidence of approximately fifteen-year-

old marijuana dealings); United States v. Pollock, 926 F.2d 1044, 1048 (11th Cir.

1991) (noting that courts have upheld the admission of rule 404(b) evidence

regarding convictions that “occurred ten and thirteen years earlier than the charged

offense”). Thus, as the district court found, evidence of Smith’s prior convictions

was not inadmissible simply because those convictions occurred six and ten years

before the conduct at issue in Smith’s August 2011 trial.

      Our precedent similarly contradicts Smith’s argument that evidence of his

earlier possession convictions ought not to have been admitted as probative of his

later intent to distribute. This Court has specifically rejected that argument. See

United States v. Butler, 102 F.3d 1191, 1196 (11th Cir. 1997) (“[T]he logical

extension of our current jurisprudence is to admit evidence of prior personal drug

use to prove intent in a subsequent prosecution for distribution of narcotics.”).

Prior convictions may be probative of intent where, as here, the prior conviction

was for possession of the same drug involved in the instant conspiracy. See United

States v. Green, 40 F.3d 1167, 1174 (11th Cir. 1994) (“The challenged similar act


                                          30
             Case: 12-11042     Date Filed: 12/23/2013    Page: 31 of 34


[possession of cocaine] involved the same mental state as the charged crime

[possession with intent to distribute cocaine] because both incidents involved

possession of the same illicit drug, cocaine.”). Thus, we have little difficulty in

concluding that the district court did not abuse its discretion in denying Smith’s

motion to exclude evidence of his two prior convictions.

                                          B.

      Smith also appeals from the denial of his motion to sever his felon-in-

possession charge. Smith concedes, however, that if the district court did not err in

denying his motion to exclude the evidence of his prior convictions, it did not err

in denying his motion to sever. See United States v. Gabay, 923 F.2d 1536, 1540

(11th Cir. 1991) (“Unfair prejudice does not result when two offenses are joined if

evidence admissible to prove each offense is also admissible to prove the other

offense.”). Because we find that the court did not err in admitting the evidence of

Smith’s prior convictions, we also necessarily find that the court properly denied

Smith’s motion to sever the felon-in-possession charge.

                                          C.

      Smith’s two remaining challenges concern the district court’s conduct at the

sentencing hearing. First, Smith claims that the court erred in considering

acquitted conduct when it calculated and imposed his 420-month sentence. Smith




                                          31
             Case: 12-11042     Date Filed: 12/23/2013    Page: 32 of 34


also argues that his sentence violated the Sixth Amendment “as applied.” Again,

our precedent disposes of both of these arguments.

      First, Smith says that the district court impermissibly imposed a sentence

calculated in partial reliance upon acquitted conduct. It is true that Smith’s

sentence was premised partially on facts that the jury did not find beyond a

reasonable doubt, such as the applicable drug weight of fifty-six kilograms and

Smith’s use of a firearm in furtherance of the drug crime. But in United States v.

Watts, 519 U.S. 148, 157 (1997), the Supreme Court held that a “verdict of

acquittal does not prevent the sentencing court from considering conduct

underlying the acquitted charge, so long as that conduct has been proved by a

preponderance of the evidence.” Smith does not argue that the government failed

to establish sentencing facts by a preponderance of the evidence; rather, he says

that Watts is no longer good law in light of the Supreme Court’s later decisions in

United States v. Booker, 543 U.S. 220 (2005), and Blakely v. Washington, 542

U.S. 296 (2004). Our precedent cannot square with Smith’s readings of those

cases. Indeed, even after Booker, we have held that “[s]entencing courts may

consider both uncharged and acquitted conduct in determining the appropriate

sentence.” United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006)

(quoting United States v. Hasson, 333 F.3d 1264, 1279 n.19 (11th Cir. 2003)).




                                          32
               Case: 12-11042        Date Filed: 12/23/2013       Page: 33 of 34


       Second, Smith claims that the district court violated the Sixth Amendment

“as applied.” This Court has never entertained an as-applied Sixth Amendment

challenge.5 Moreover, and frequently in the face of Sixth Amendment challenges,

we have repeatedly stated that sentencing courts may find by a preponderance of

the evidence all facts relevant to imposing a sentence below the statutory

maximum. See, e.g., United States v. Ghertler, 605 F.3d 1256, 1268 (11th Cir.

2010) (“[O]ur precedent holds that district courts are permitted to find facts at

sentencing ‘so long as the judicial factfinding does not increase the defendant’s

sentence beyond the statutory maximum triggered by the facts conceded or found

by a jury beyond a reasonable doubt.’”) (quoting United States v. Hunt, 459 F.3d

1180, 1182 (11th Cir. 2006)); United States v. Duncan, 400 F.3d 1297, 1302-03

(11th Cir. 2005) (rejecting argument that Sixth Amendment was violated where

facts found by court allowed sentence to be imposed in excess of Guidelines range

5
  We note in passing that our holding is consistent with the position taken by at least seven other
circuits. See United States v. Hernandez, 633 F.3d 370, 374 (5th Cir. 2011) (rejecting Sixth
Amendment as-applied claim under circuit precedent); United States v. Treadwell, 593 F.3d 990,
1017-18 (9th Cir. 2010) (holding that Sixth Amendment as-applied claims are “too creative for
the law as it stands”) (quoting United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008));
United States v. Ashqar, 582 F.3d 819, 825 (7th Cir. 2009) ( “While [the as-applied Sixth
Amendment] argument is not without its advocates, it is not the law.”); United States v. White,
551 F.3d 381, 384 (6th Cir. 2008) (en banc) (“In the post-Booker world, the relevant statutory
ceiling is no longer the Guidelines range but the maximum penalty authorized by the United
States Code.”); Benkahla, 530 F.3d at 312 (rejecting Sixth Amendment as-applied claim as “too
creative for the law as it stands”); United States v. Redcorn, 528 F.3d 727, 745-46 (10th Cir.
2008) (rejecting as-applied Sixth Amendment challenge); United States v. Grier, 475 F.3d 556,
565 (3d Cir. 2007) (stating that a jury need only determine those facts “that increase the statutory
maximum punishment”); United States v. Norman, 465 F. App’x 110, 121 (3d Cir. 2012)
(explaining that, while Grier involved a Fifth Amendment challenge, it “left no room for doubt
regarding our view of the Sixth Amendment [as-applied] question”).
                                                33
             Case: 12-11042    Date Filed: 12/23/2013   Page: 34 of 34


authorized solely by jury verdict). It is undisputed that Smith’s 420-month

sentence is less than the statutory maximum (life imprisonment) that was

authorized by the jury verdict. Furthermore, Smith does not allege (nor could he)

that the sentencing court took the Guidelines as mandatory instructions, rather than

advisory in nature. See Booker, 543 U.S. at 249-65 (Breyer, J.) (rendering the

Guidelines advisory in order to avoid Sixth Amendment concerns). In the context

of sentencing determinations, the Sixth Amendment requires nothing more.

Smith’s Sixth Amendment as-applied claim is foreclosed by our prior precedent.

      Accordingly, we affirm both his conviction and the ensuing sentence.

      AFFIRMED.




                                         34
