United States v. Lauria (Molina) ( 2023 )

21-2598
United States v. Lauria (Molina)
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2022
No. 21-2598-cr
UNITED STATES OF AMERICA
Appellee,
v.
ANTHONY LAURIA
Defendant,
ANTHONY MOLINA
Defendant-Appellant.
__________
ARGUED: NOVEMBER 10, 2022
DECIDED: JUNE 9, 2023
__________
Before: LEVAL, RAGGI, and PÉREZ, Circuit Judges.
________________
On appeal from a judgment of conviction entered in the United States
District Court for the Southern District of New York (Román, J.) on multiple counts
of substantive and conspiratorial Hobbs Act robbery and of the brandishing of a
firearm during two crimes of violence (i.e., the charged robberies), defendant
Anthony Molina argues that the court erred (1) in relying on the inevitable
discovery doctrine to deny his motion to suppress evidence obtained through
warrants supported by concededly defective affidavits, and (2) in charging the
jury that a gun constitutes a firearm and refusing to give his requested jury
instruction. Because we agree that the inevitable discovery doctrine does not
apply in the circumstances of this case, and because the conceded misstatements
in the affidavits were material to the issuing magistrate judges’ probable cause
determinations, remand is required for the district court to conduct a hearing to
determine if the challenged evidence was admissible under the standard identified
in Franks v. Delaware, 438 U.S. 154 (1978). As to the jury charge, the district court
erred in instructing the jury that a gun is a firearm, see United States v. Rosa, 507
F.3d 142, 145 n.1 (2d Cir. 2007), and because we cannot conclude that this error
was harmless as a matter of law, we vacate Molina’s firearms convictions.
VACATED AND REMANDED.
_________________
RICHARD W. LEVITT (Zachary Segal, on the brief), Levitt &
Kaizer, New York, NY, for Defendant-Appellant.
LINDSEY KEENAN, Assistant United States Attorney (Karl
Metzner, Assistant United States Attorney, on the brief) for
Damian Williams, United States Attorney for the
Southern District of New York, New York, NY, for
Appellee.
_________________
REENA RAGGI, Circuit Judge:
Defendant Anthony Molina stands convicted after a jury trial in the United
States District Court for the Southern District of New York (Nelson S. Román,
Judge) of conspiratorial and substantive Hobbs Act robbery of a Connecticut
Verizon store in 2017 (Counts I and II); the brandishment of a firearm in the
2
commission of a crime of violence (i.e., the robbery charged in Count II) (Count
III); conspiratorial and substantive Hobbs Act robbery of a New York Verizon
store in 2019 (Counts IV and V); and the brandishment of a firearm in the
commission of a crime of violence (i.e., the robbery charged in Count V) (Count
VI). See 18 U.S.C. §§ 1951, 924(c)(1)(A)(ii) & 2. Now incarcerated, serving a total
prison term of 192 months (i.e., 16 years), Molina appeals his conviction arguing
that the district court erred in (1) relying on the “inevitable discovery” doctrine to
deny his motion to suppress evidence obtained through warrants supported by
affidavits containing conceded misstatements, and (2) charging the jury that a gun
constitutes a firearm and refusing to give Molina’s requested clarifying instruction
that “[a] pellet gun, imitation, facsimile or toy gun does not constitute a firearm
within the meaning of the statute.” App’x 58–59.
For reasons stated in this opinion, we vacate the district court’s denial of
Molina’s motion to suppress certain evidence obtained through defective warrants
on the ground of inevitable discovery. That exception to the exclusionary rule
does not apply here, where the government cannot show that it inevitably would
have discovered the challenged evidence through independent means but,
instead, shows only that it could have discovered that evidence by redressing flaws
in the warrant affidavits revealed by Molina’s suppression motion. In the absence
of inevitable discovery, and because the conceded misstatements in the warrant
affidavits were material to the issuing magistrate judges’ probable cause
determinations, the district court could not admit the challenged evidence without
conducting a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to determine
the affiant’s state of mind in making the misstatements at issue. Accordingly, we
remand for such a hearing, with instructions that the district court maintain or
vacate Molina’s convictions on Counts I, II, IV, and V depending on its Franks-
hearing findings.
3
As to the firearms counts of conviction, we conclude that the district court
erred in charging the jury that “a gun is a firearm,” App’x 63, in light of this court’s
precedent holding that “not all guns are firearms,” United States v. Rosa, 507 F.3d
142, 145 n.1 (2d Cir. 2007). Because we cannot conclude that this error was
harmless, we vacate Molina’s convictions under Counts III and VI and remand for
further proceedings consistent with this opinion, including possible retrial with a
correct jury instruction.
BACKGROUND
We begin by recounting particulars of the charged crimes as supported by
evidence offered at Molina’s 2021 trial. Thereafter, and as necessary to resolve
Molina’s appeal, we discuss the more limited facts (both accurate and mistaken)
submitted in affidavits to support the challenged warrants.
I. The Charged Robberies
On August 10, 2017, defendant Anthony Molina, together with co-
conspirators Anthony Lauria and Brian Rodriguez, committed the armed robbery
of a Verizon Wireless store in New Milford, Connecticut (“New Milford
Robbery”). Some eighteen months later, on February 15, 2019, the three men
committed the armed robbery of a Verizon Wireless store in Mahopac, New York
(“Mahopac Robbery”). Both robberies were captured on surveillance footage,
which demonstrated many shared characteristics, including the early evening time
of the robberies; two men (i.e., Molina and Rodriguez) robbing the stores, while a
third (i.e., Lauria) acted as getaway driver; the use of zip-ties to restrain victims;
the brandishment of a gun during each robbery; and the use of the same, or a
similar, Honda Accord to flee the robbery scene. 1 Because Molina and Rodriguez
1For his role in the charged robberies, Rodriguez pleaded guilty to one count of conspiracy to commit
Hobbs Act robbery, wire fraud, and interstate transportation of stolen goods, see 18 U.S.C. § 371; see also id.§§ 1951, 1343, 2314, and one count of brandishing a firearm during the Mahopac Robbery, see id.
§§ 924(c)(1)(A)(ii) & 2, for which crimes he was sentenced principally to 132 months’ imprisonment. We
4
used a mask or a hat and sunglasses to conceal their faces during the robberies, no
eyewitness identifications were obtained. Instead, the robbers’ identities were
established largely through forensic evidence, as detailed herein.
A. New Milford Robbery
At 7:22 p.m. on August 10, 2017, Lauria entered the target New Milford
Verizon store and asked a clerk about purchasing an iPhone. After exiting the
store without making a purchase, Lauria walked toward a dark-colored Honda
Accord with distinctive tire rims. Soon after, at 7:34 p.m., Rodriguez and Molina
exited that Honda and entered the Verizon store. Brandishing a gun, Molina
restrained two persons in the store with zip-ties and disabled many of the store’s
security systems. He and Rodriguez then proceeded to steal 77 Apple iPads and
iPhones valued at $48,680 from the store’s back room before fleeing the scene.
B. Mahopac Robbery
At 7:40 p.m. on February 15, 2019, what appeared to be the same Honda
sedan seen at the New Milford Robbery pulled up to the target Mahopac Verizon
store. Within minutes, Rodriguez and Molina exited the Honda and entered the
store. Once again, one of the robbers disabled many of the store’s security systems.
Also, Molina brandished a gun and zip-tied the wrists of a store clerk. This time,
he and Rodriguez stole iPhones and other electronic devices valued at $54,745
from the store’s safe before fleeing the scene.
affirm his conviction in a summary order also filed today. See United States v. Lauria (Rodriguez), No. 21-
2304 (2d Cir. June 9, 2023), Dkt. No. 91. Meanwhile, co-defendant Anthony Lauria, who pleaded guilty to
one count of conspiratorial and one count of substantive Hobbs Act robbery for each of the two robberies,
see 18 U.S.C. §§ 1951 & 2, and one count of using a firearm that was brandished during the Mahopac
Robbery, see id. §§ 924(c)(1)(A)(ii) & 2, was sentenced principally to 108 months’ imprisonment. Lauria has
not appealed his conviction.
5
II. Investigations To Identify the Robbers
A. Fingerprint Implicates Lauria in the New Milford Robbery
Soon after the New Milford Robbery, that town’s police began an
investigation to identify the robbers, inter alia, taking witness statements,
reviewing video surveillance footage, and recovering a fingerprint from the door
of the target Verizon store. A comparison of that fingerprint with those on file
with New York State would later reveal the recovered print to match the right
thumb of Anthony Lauria.
B. Anonymous Tip Implicates Lauria, Molina, and Rodriguez in the
New Milford Robbery
Town police also posted surveillance video of the New Milford Robbery
online. On January 8, 2018, Connecticut State Police received an anonymous tip
from two persons who had seen the video and identified the robbers as Lauria,
Rodriguez, and Molina. The tipsters provided Instagram account and contact
information for these three persons—specifically, phone numbers ending in -3972
for Lauria, -1912 for Rodriguez, and -9885 for Molina. By querying a law
enforcement database, New Milford police were able to corroborate the tipsters’
attribution of the -3972 number to Lauria. 2 Further, by comparing a New York
arrest photo of Lauria with surveillance footage of the unmasked man who entered
and left the Verizon store shortly before the New Milford Robbery, town police
were able to place Lauria at the scene of that crime.
2The FBI also subsequently developed evidence showing that the cell phone with a call number ending in
-3972 was registered to Lauria and that the cell phone with a call number ending in -1912 was registered to
Rodriguez. Accordingly, in this opinion we refer to these devices as “Lauria’s -3972 cell phone” and
“Rodriguez’s -1912 cell phone.”
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C. Cell Phone Records
1. The February 15 and May 18, 2018 State Warrants: Linking
Lauria’s -3972, Rodriguez’s -1912, and Molina’s -4879 Cell
Phones to the New Milford Robbery
On February 15, 2018, New Milford police obtained from a Connecticut
Superior Court judge a warrant for toll records and historical cell-site location
information (“CSLI”) for Lauria’s -3972 cell phone for the month of August 2017.
On May 18, 2018, police obtained another state warrant for the same information
and time period for Rodriguez’s -1912 cell phone. Responsive records revealed
that throughout August 2017 these two cell phones were used exclusively in New
York State except on August 10, 2017, i.e., the date of the New Milford Robbery,
when the phones were both used in New Milford. Between 3:06 p.m. and
11:47 p.m. on that date—i.e., in an approximately nine-hour span that included the
time of the New Milford Robbery—Rodriguez’s -1912 cell phone communicated
at least six times with Lauria’s -3972 cell phone and at least seven times with a
then-unidentified cell phone with a call number ending in -4879. 3
2. The March 4, 2019 SDNY Warrant: Linking Lauria’s -3972,
Rodriguez’s -1912, and Molina’s -2454 Cell Phones to the
Mahopac Robbery
On March 4, 2019, approximately two weeks after the Mahopac Robbery, an
FBI agent obtained from a magistrate judge in the Southern District of New York
a “tower extraction” warrant directing several cell service providers to supply
phone numbers that had accessed cell towers closest to the Mahopac Verizon store
on February 15, 2019, between 6:30 p.m. and 8:30 p.m.—i.e., a two-hour period
including the time of that store’s robbery.
3The FBI would not link this -4879 phone number to Molina until a year later when agents searched
Rodriguez’s -1912 cell phone, seized at the time of his April 30, 2019 arrest. See infra at 10.
7
In response, AT&T reported that its records for the specified period showed
that Rodriguez’s -1912 cell phone had used a cell tower near the victimized
Mahopac store to communicate with Lauria’s -3972 cell phone. Meanwhile, Sprint
reported that its records for the specified period showed that Lauria’s -3972 cell
phone had used a cell tower near the Mahopac store to communicate with both
Rodriguez’s -1912 cell phone and a then-unidentified cell phone with a call
number ending in -2454. No records obtained pursuant to the March 4, 2019
warrant, however, revealed the location of the -2454 cell phone when it
communicated with Lauria’s -3972 cell phone on the date of the Mahopac
Robbery. 4
3. The Challenged March 29 and April 23, 2019 SDNY Warrants:
Further Linking Lauria’s -3972, Rodriguez’s -1912, and
Molina’s -2454 Cell Phones to the Mahopac Robbery
Molina does not challenge any of the warrants discussed thus far or the
evidence obtained thereby. Rather, his appeal focuses on warrants obtained by
the FBI on March 29 and April 23, 2019 (hereafter, “March 29 Warrant” and
“April 23 Warrant”), as well as on subsequent warrants to the extent they were
obtained in reliance on evidence resulting from the March 29 and April 23
Warrants.
The March 29 Warrant required cell phone servicers to provide toll records
and historical CSLI for Lauria’s -3972 cell phone, Rodriguez’s -1912 cell phone, and
Molina’s -2454 cell phone (1) for the six-week period from July 10 to August 24,
2017, which included the August 10, 2017 date of the New Milford Robbery; and
4 Sometime before March 29, 2019, the FBI determined that this -2454 number was associated with a
business at which Molina worked. Further, on or about April 27, 2019, surveillance agents observed an
individual matching Molina’s description and located at Molina’s home address answering a cell phone
when the -2454 number was called. Molina would be located via and found in possession of this -2454 cell
phone when arrested on April 30, 2019. See infra at 10. Accordingly, hereafter in this opinion, we refer to
this device as “Molina’s -2454 cell phone.”
8
(2) for the six-week period from January 22 to March 5, 2019, which included the
February 15, 2019 date of the Mahopac Robbery. See Molina’s Mem. of Law in
Supp. of Mot. to Suppress Evid. Ex. F at Warrant ¶ 6, United States v. Lauria, No. 19-
CR-449 (NSR) (S.D.N.Y. June 8, 2020), Dkt. No. 55-6. 5
Responsive records showed that all three cell phones were used in the
vicinity of the Mahopac Verizon store on the date of that store’s robbery, but were
not used in Mahopac at any other time during the month of February 2019.
Records further confirmed that Lauria’s -3972 and Rodriguez’s -1912 cell phones
(but not Molina’s -2454 cell phone) were used in the vicinity of the New Milford
store on the date of that store’s robbery, but were not used in New Milford or
anywhere else in the state of Connecticut at any other time during the month of
August 2017.
The April 23 Warrant required that for Rodriguez’s -1912 and Molina’s -2454
cell phones, cell phone servicers provide toll records and historical CSLI for the
82-day period from February 1 to April 23, 2019; prospective CSLI for the 45-day
period from April 23 to June 7, 2019; and prospective pen register information for
the 60-day period from April 23 to June 22, 2019. See Molina’s Mem. of Law in
Supp. of Mot. to Suppress Evid. Ex. G at Warrant ¶¶ 7–9, United States v. Lauria,
No. 19-CR-449 (NSR) (S.D.N.Y. June 8, 2020), Dkt. No. 55-7. The record reveals
little about the results of this warrant but, as Molina himself observes, it appears
not to have “uncover[ed] any relevant evidence in addition to that uncovered by
the March 29, 2019, Cell Site Warrant.” Appellant Br. 16 n.7.
5The affidavit supporting the March 29 Warrant misattributes the -1912 cell phone to Molina and the -2454
cell phone to Rodriguez. This error was corrected in the April 23 Warrant affidavit. Compare Molina’s
Mem. of Law in Supp. of Mot. to Suppress Evid. Ex. F at Warrant Aff. (“March 29 Warrant Aff.”) ¶ 4, United
States v. Lauria, No. 19-CR-449 (NSR) (S.D.N.Y. June 8, 2020), Dkt. No. 55-6, with Molina’s Mem. of Law in
Supp. of Mot. to Suppress Evid. Ex. G at Warrant Aff. (“April 23 Warrant Aff.”) ¶ 4, United States v. Lauria,
No. 19-CR-449 (NSR) (S.D.N.Y. June 8, 2020), Dkt. No. 55-7. Thus, in discussing the March 29 Warrant, we
refer to these devices as correctly attributed to Rodriguez and Molina, i.e., Rodriguez’s -1912 cell phone and
Molina’s -2454 cell phone.
9
4. The April 29–30, 2019 SDNY Warrants and the Robbers’
Arrests
Approximately one week later, on April 29, 2019, an FBI agent filed a joint
criminal complaint against Lauria, Rodriguez, and Molina, and obtained federal
warrants permitting the use of cell-site simulators (known as “triggerfish”) for
Rodriguez’s -1912 and Molina’s -2454 cell phones to allow law enforcement agents
to locate and arrest the men. 6 Rodriguez and Molina were both arrested the next
day, with the -1912 cell phone seized from the former, and the -2454 cell phone
seized from the latter.
Pursuant to further warrants obtained on April 30, 2019, agents searched the
seized phones. From Rodriguez’s -1912 cell phone, they retrieved at least seven
saved contacts for “Molina.” One entry was for Molina’s -2454 cell phone.
Another entry, denominated “Molina 4,” had a call number ending in -4879—i.e.,
the heretofore unidentified cell phone that had been in repeated contact with
Rodriguez’s -1912 cell phone on the day of the New Milford Robbery. 7
5. The May 23, 2019 SDNY Cell-Site Warrant Links Molina’s
-4879 Cell Phone to the New Milford Robbery
On May 23, 2019, agents procured a federal warrant for toll records and
historical CSLI for Molina’s -4879 cell phone. Responsive records showed that
Molina’s -4879 cell phone was used in New Milford on the day of the New Milford
Robbery.
6At this time, Lauria had already been arrested by New Milford police and released on bail. Thus, his
location was apparently known to FBI agents, who arrested him on federal charges on April 30, 2019.
7 Accordingly, we hereafter refer to the -4879 device as “Molina’s -4879 cell phone.”
10
6. The June 3, 2019 SDNY Warrant: DNA Links Molina to the
Mahopac Robbery
A further June 3, 2019 warrant authorized federal agents to collect DNA
samples from Lauria, Molina, and Rodriguez. Subsequent analysis revealed that
Molina’s DNA was a likely contributor to the DNA on a zip-tie used to restrain a
victim of the Mahopac Robbery.
III. District Court Proceedings
A. Suppression Motion
On June 8, 2020, Molina moved, inter alia, to suppress evidence seized
pursuant to the March 29 and April 23 Warrants, arguing that the affidavits used
to support these warrants contained material misrepresentations. Molina also
moved to suppress evidence seized pursuant to subsequent warrants to the extent
those warrants depended on evidence derived from the March 29 and April 23
Warrants to establish probable cause. The government conceded misstatements
in the March 29 and April 23 Warrant affidavits but argued that the inevitable
discovery and corrected affidavit doctrines allowed it to avoid suppression.
1. The Acknowledged Misstatements
The March 29 Warrant affidavit contained numerous misstatements, one of
which was corrected in the April 23 Warrant affidavit, but most of which were
not. 8 Instead, they were repeated therein. The misstatements are not easily
untangled from the totality of facts. Nevertheless, we endeavor to do so now.
First, as to the New Milford Robbery, the affidavits misstate that toll records
for Lauria’s -3972 cell phone showed that, on August 10, 2017, shortly before and
shortly after the New Milford Robbery, that phone was in communication with
8As noted supra at Note 5, the March 29 Warrant affidavit misattributes the -2454 cell phone to Rodriguez
and the -1912 cell phone to Molina, when the reverse is correct. This is corrected in the April 23 Warrant
affidavit. Compare March 29 Warrant Aff. ¶ 4, with April 23 Warrant Aff. ¶ 4.
11
both Rodriguez’s -1912 and Molina’s -2454 cell phones. See March 29 Warrant Aff.
¶ 8(i); April 23 Warrant Aff. ¶ 9(i). In fact, the FBI did not then possess any records
of communication on August 10, 2017, between Lauria’s -3972 and Molina’s -2454
cell phones. 9 Rather, at the time of the March 29 Warrant, the FBI possessed
records showing communication between Lauria’s -3972 and Rodriguez’s -1912
cell phones and between Rodriguez’s -1912 cell phone and a then-unidentified
-4879 cell phone. The FBI would not link that last number to Molina until April 30,
2019, when Rodriguez was arrested and a search of his seized -1912 cell phone
showed the -4879 cell phone listed as “Molina 4.” In sum, the warrant affidavits
incorrectly reported that electronic records had linked Molina to the New Milford
Robbery when there was then no basis for that assertion. 10
Second, as to the Mahopac Robbery, the affidavits repeatedly misdate that
crime as February 19, 2019, when it in fact occurred days earlier, on February 15,
2019. See March 29 Warrant Aff. ¶¶ 7, 12(a); April 23 Warrant Aff. ¶¶ 8, 14(a). The
affidavits then state that CSLI places Lauria’s -3972, Rodriguez’s -1912, and
Molina’s -2454 cell phones in the vicinity of the victimized Verizon store “on
February 19, 2019” and that toll records show Lauria’s -3972 cell phone in
9It would appear from the record that as of August 10, 2017, Molina was not using the -2454 number, as it
was not registered to the business at which Molina worked until some six months after the New Milford
Robbery.
10The challenged affidavits did not report that anonymous tipsters had linked Molina to the New Milford
Robbery, though they did state that Molina, Lauria, and Rodriguez were Facebook friends. See March 29
Warrant Aff. ¶ 11; April 23 Warrant Aff. ¶ 13. Thus, on this appeal we do not consider how such
anonymous information—as partially corroborated by fingerprint or electronic evidence linking Lauria
and Rodriguez (but not Molina) to the New Milford Robbery—might have informed a probable cause
determination for the challenged CSLI for Molina’s -2454 cell phone. See generally Illinois v. Gates, 462 U.S.
213, 243–44 (1983) (upholding magistrate’s reliance in issuing warrant on anonymous letter corroborated
“in major part” by independent police work, explaining that “[i]t is enough, for purposes of assessing
probable cause, that corroboration through other sources of information reduced the chances of a reckless
or prevaricating tale, thus providing a substantial basis for crediting the [tipster’s] hearsay” (internal
quotation marks omitted)). Cf. United States v. Gagnon, 373 F.3d 230, 236 (2d Cir. 2004) (stating, with respect
to informant, that corroboration properly informs assessment of information provided “because an
informant who is right about some facts is more likely to be right about others”).
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communication with Rodriguez’s -1912 and Molina’s -2454 cell phones “on
February 19, 2019, shortly before and after the Mahopac . . . Robbery.” March 29
Warrant Aff. ¶¶ 13, 14; April 23 Warrant Aff. ¶¶ 15, 16. Because the robbery did
not occur on February 19, 2019, phone records showing locations and
communications on that date provide little information to support probable cause.
Here again, however, these paragraphs also misstate the date of the records. The
toll records and CSLI referenced therein actually date to February 15, the date of
the Mahopac Robbery, not to February 19, as reported to the magistrate judge.
Third, in addition to misdating the Mahopac Robbery and the referenced
phone records, the affidavits err in stating that CSLI “from the closest cell tower to
the Mahopac Store” showed that Lauria’s -3972, Rodriguez’s -1912, and Molina’s
-2454 cell phones were then “all in the vicinity of the Mahopac Store.” March 29
Warrant Aff. ¶ 13 (emphasis added); April 23 Warrant ¶ 15 (same). In fact, when
the March 29 and April 23 Warrants were obtained, Sprint records showed that on
the date of the Mahopac Robbery (i.e., February 15, 2019), Lauria’s -3972 cell phone
had accessed a cell tower near the victimized store in communicating with
Molina’s -2454 cell phone, but no records had yet been obtained showing what cell
tower Molina’s -2454 cell phone had accessed in that communication. Agents
would later discover that, on the date of the Mahopac Robbery, Molina’s -2454 cell
phone had, indeed, been in the vicinity of the victimized store when it
communicated with Lauria’s -3972 cell phone. Their failure to obtain this
information before applying for the March 29 and April 23 Warrants apparently
resulted from an error in filing the initial request form, i.e., an FBI agent had
referenced the wrong time zone and, thus, obtained T-Mobile’s Mahopac area
tower records for the wrong time frame, which did not reflect any “pings” from
Molina’s -2454 cell phone. It was Molina’s suppression motion of June 8, 2020, that
prompted federal agents to discover this error and to submit a corrected request
form to T-Mobile, thereby obtaining records that would confirm the use of
Molina’s -2454 cell phone in Mahopac on the date of the Mahopac Robbery. But
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at the time of the challenged affidavits, there was no factual basis for such an
assertion.
Fourth, similarly, without regard to the dating error, the affidavits misstate
that toll records had been obtained showing Lauria’s -3972 cell phone to have been
in communication with Rodriguez’s -1912 and Molina’s -2454 cell phones “shortly
before and after the Mahopac Store robbery.” March 29 Warrant Aff. ¶ 14
(emphasis added); April 23 Warrant Aff. ¶ 16 (same). The referenced toll records
showed such communication before, but not after, the robbery.
2. Denial of Suppression
In an opinion filed September 25, 2020, the district court considered
whether, with acknowledged misstatements deleted, the March 29 Warrant
affidavit nevertheless stated facts sufficient to establish probable cause to support
a production order for records pertaining to Molina’s -2454 cell phone. The district
court concluded that it did not, explaining that “the evidence in the affidavit
linking Molina to either robbery is meager” and, thus, “the false statements”—
particularly the first and third misstatements noted above—“were necessary to the
issuing judge’s probable cause finding.” United States v. Lauria, No. 19-CR-449
(NSR), 2020 WL 5743523, at *10 (S.D.N.Y. Sept. 25, 2020) (brackets and internal
quotation marks omitted).
The district court nevertheless denied Molina’s suppression motion, finding
that the evidence at issue “would have inevitably been obtained” because the
government “would have been able to remedy” the acknowledged misstatements
in the warrant affidavit “independently” and to submit an amended affidavit
establishing probable cause. Id. at *11. In so ruling, the district court credited the
government’s explanation that it had (1) resubmitted a corrected records request
to service provider T-Mobile, which would yield records placing Molina’s -2454
cell phone in the vicinity of the victimized Verizon store on the date of the
Mahopac Robbery; and (2) linked Molina to the -4879 cell phone—and, thus, to the
14
New Milford Robbery—when it searched the -1912 cell phone seized from
Rodriguez at the time of his arrest. The court concluded that “these independent
means of obtaining the challenged information” afforded “a high level of
confidence that such evidence would have inevitably been obtained.” Id. On that
basis, the district court concluded that suppression was properly denied without
the need to conduct a hearing pursuant to Franks v. Delaware to determine the
affiant’s state of mind in making the material misstatements. See id. at *12.
B. Superseding Indictment
On December 8, 2020, a grand jury sitting in the Southern District of New
York returned a six-count superseding indictment, charging Molina with
conspiratorial and substantive Hobbs Act robbery in connection with the New
Milford Robbery (Counts I and II); the brandishment of a firearm in the
commission of a crime of violence (i.e., the New Milford Robbery) (Count III);
conspiratorial and substantive Hobbs Act robbery in connection with the Mahopac
Robbery (Counts IV and V); and the brandishment of a firearm in the commission
of a crime of violence (i.e., the Mahopac Robbery) (Count VI).
C. Jury Charge on Firearms Counts
Molina’s six-day jury trial began on June 15, 2021. Molina there adduced
evidence tending to cast doubt on whether the weapons brandished during the
charged robberies—not recovered by authorities—were “firearms” within the
meaning of 18 U.S.C. § 924(c). Thus, a Verizon employee present during the New
Milford Robbery, who testified that he concluded that the brandished weapon was
“a real gun,” admitted on cross-examination to having previously told prosecutors
and law enforcement officers that he thought the object was “a plastic gun” or “a
pellet gun.” Trial Tr. 211–12. Also on cross-examination, another Verizon
employee present during the New Milford Robbery testified that, when cocked,
the brandished gun “sounded plastic.” Id. at 389–90. Meanwhile, a Verizon
employee present during the Mahopac Robbery, who testified that the brandished
15
weapon looked like a “hand pistol,” conceded on cross-examination that he had
only observed the weapon and had not come into physical contact with it. Id. at
35, 52–53. Finally, a police sergeant who had reviewed the Mahopac Robbery
surveillance video acknowledged on cross-examination that he was unable
conclusively to determine from the video “if it is a real gun or not.” Id. at 78.
Based on this evidence, Molina’s trial counsel proposed that the district
court instruct the jury as to the § 924(c) counts that, “[a] pellet gun, imitation,
facsimile or toy gun does not constitute a firearm within the meaning of the
statute.” Id. at 513. The district court denied the request, deeming the proposed
language unnecessary because its proposed charge “reads . . . the definition of a
firearm,” and “indicates that it’s the government’s burden to demonstrate that [the
weapon brandished is] a firearm as defined.” Id. at 514. Counsel then requested
that the district court strike the last sentence of its proposed charge, which stated,
“I instruct you that a gun is a firearm,” on the ground that “‘[g]un’ is an ambiguous
statement” because it could include a “pellet gun.” Id. at 514–15. Denying this
request, the district court instructed the jury as follows:
A firearm under the statute means any weapon, which will or is
designed to or may readily be converted to expel a projectile by the
action of an explosive. In considering this specific element of which
the defendant used or carried or possessed a firearm, it does not
matter whether the firearm was loaded or operable at the time of the
crime. Operability is not relevant to your determination of whether a
weapon qualifies as a firearm. I instruct you that a gun is a firearm.
Id. at 553–54.
D. Verdict and Sentence
On June 23, 2021, the jury found Molina guilty of all six counts charged in
the superseding indictment. On September 24, 2021, the district court sentenced
Molina principally to four concurrent 24-month prison terms on Counts I, II, IV,
and V (the robbery counts), and two 84-month prison terms on Counts III and VI
16
(the firearms counts), these last two terms to run consecutively to each other and
to the 24-month concurrent terms, for a total prison sentence of 192 months, or
16 years. The district court’s October 12, 2021 judgment was entered on the docket
on October 13, 2021, and Molina timely filed this appeal.
DISCUSSION
I. Suppression Claim
Molina argues that the district court erred in allowing the jury to hear
evidence obtained through warrants supported by materially false information.
Specifically, Molina faults the district court’s reliance on the inevitable discovery
doctrine in denying his motion to suppress this evidence. We agree that the
inevitable discovery doctrine does not apply in this case and that the
misstatements at issue were material to a finding of probable cause. We therefore
remand this case to the district court for it to conduct a Franks hearing as to the
affiant’s state of mind in making the challenged misstatements.
A. The Fourth Amendment’s Exclusionary Rule
“The Fourth Amendment protects the right of private citizens to be free
from unreasonable government intrusions into areas where they have a legitimate
expectation of privacy.” United States v. Newton, 369 F.3d 659, 664 (2d Cir. 2004);
see U.S. Const. amend. IV. The Supreme Court has recognized a person to have
such an expectation of privacy “in the record of his physical movements as
captured through CSLI.” Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018).
The Court has further recognized government acquisition of CSLI from service
providers to constitute a “search” within the meaning of the Fourth Amendment.
Id.“[T]he ultimate touchstone of the Fourth Amendment is reasonableness,”
which “generally requires the obtaining of a judicial warrant” to “ensure[] that the
inferences to support a search are drawn by a neutral and detached magistrate”
17
rather than “the officer engaged in the often competitive enterprise of ferreting out
crime.” Riley v. California, 573 U.S. 373, 381–82 (2014) (internal quotation marks
omitted). Accordingly, “the Government must generally obtain a warrant
supported by probable cause before acquiring [CSLI] records.” Carpenter v. United
States, 138 S. Ct. at 2221. Searches conducted pursuant to such warrants are
presumptively reasonable. See Ganek v. Leibowitz, 874 F.3d 73, 81 (2d Cir. 2017)
(holding “search pursuant to a warrant issued by a judicial officer upon a finding
of probable cause is presumptively reasonable”). Nevertheless, where the
presumption is overcome, even evidence obtained pursuant to a warrant can be
suppressed. See United States v. Leon, 468 U.S. 897, 922 (1984) (observing
suppression not “always inappropriate in cases where an officer has obtained a
warrant and abided by its terms”).
The Fourth Amendment itself “‘contains no provision expressly precluding
the use of evidence obtained in violation of its commands’”; rather, the Supreme
Court has “establish[ed] an exclusionary rule that, when applicable, forbids the
use of improperly obtained evidence at trial.” Herring v. United States, 555 U.S.
135, 139 (2009) (quoting Arizona v. Evans, 514 U.S. 1, 10 (1995)). As the Court has
acknowledged, such a rule exacts “substantial social costs” because “[i]t almost
always requires courts to ignore reliable, trustworthy evidence bearing on guilt or
innocence.” Davis v. United States, 564 U.S. 229, 237 (2011) (internal quotation
marks omitted). Nevertheless, “society must swallow this bitter pill when
necessary”; specifically, when “the deterrence benefits of
suppression . . . outweigh its heavy costs.” Id.; see Herring v. United States, 555 U.S.
at 141 (“[T]he exclusionary rule is not an individual right and applies only where
it results in appreciable deterrence.” (brackets and internal quotation marks
omitted)); see also Riley v. California, 573 U.S. at 403 (recounting history of Fourth
Amendment as response to “the reviled ‘general warrants’ and ‘writs of assistance’
of the colonial era,” opposition to which was “one of the driving forces behind the
Revolution itself”). Thus, just as a warrant does not invariably make evidence
18
admissible, “[t]he identification of Fourth Amendment error does not
automatically entitle a defendant to the suppression of evidence.” United States v.
Felder, 993 F.3d 57, 75 (2d Cir. 2021). Rather, “as with any remedial device, the
application of the [exclusionary] rule has been restricted to those areas where its
remedial objectives are thought most efficaciously served.” United States v. Leon,
468 U.S. at 908 (brackets and internal quotation marks omitted).
The Supreme Court has instructed that the exclusionary rule does not apply
when evidence is obtained “in objectively reasonable reliance on a subsequently
invalidated search warrant.” Id. at 922. In recognizing this “good faith” exception
for searches conducted pursuant to warrants, the Court has reasoned that “[i]n
most such cases, there is no police illegality,” and “[p]enalizing the officer for the
magistrate’s error, rather than his own, cannot logically contribute to the
deterrence of Fourth Amendment violations.” Id. at 920–21. In so holding,
however, the Court has made clear that suppression “remains an appropriate
remedy if the magistrate or judge in issuing a warrant was misled by information
in an affidavit that the affiant knew was false or would have known was false
except for his reckless disregard of the truth,” id. at 923 (citing Franks v. Delaware,
438 U.S. 154); accord United States v. Moore, 968 F.2d 216, 222 (2d Cir. 1992)
(explaining that “good faith exception has parameters . . . in which it does not
apply,” including “where the issuing magistrate has been knowingly misled”), or
“in situations where an officer is . . . ‘grossly negligent’ in seeking or executing a
warrant,” United States v. Raymonda, 780 F.3d 105, 118 (2d Cir. 2015) (quoting
Herring v. United States, 555 U.S. at 144). However, where an affiant’s
misstatements are attributable to mere “negligence or innocent mistake,”
suppression is not required. United States v. Lambus, 897 F.3d 368, 399 (2d Cir.
2018) (alteration and internal quotation marks omitted) (discussing Franks
standard).
19
Here, the district court concluded that the issuing magistrate judges had
been misled insofar as the affidavits submitted in support of the government’s
applications for the March 29 and April 23 Warrants contained misstatements
material to the identification of probable cause. Nevertheless, it concluded that it
did not need to conduct a Franks hearing to determine the affiant’s state of mind
because another exception to the exclusionary rule applied in this case: the
inevitable discovery doctrine. Molina argues that the district court misapplied the
inevitable discovery doctrine in reaching this conclusion. On de novo review, see
United States v. Jones, 43 F.4th 94, 109 (2d Cir. 2022), we agree that the doctrine does
not apply in the circumstances of this case for reasons that we now explain.
B. The Inevitable Discovery Doctrine Does Not Apply in This Case
The inevitable discovery doctrine instructs that “‘evidence obtained during
the course of an unreasonable search and seizure should not be excluded if the
government can prove that the evidence would have been obtained inevitably
without the constitutional violation.’” In re 650 Fifth Ave. & Related Props., 830 F.3d
66, 102 (2d Cir. 2016) (quoting United States v. Heath, 455 F.3d 52, 55 (2d Cir. 2006)).
The Supreme Court first recognized this exception in Nix v. Williams, 467
U.S. 431 (1984), identifying it as “closely related” and “functional[ly] similar[]” to
the independent source doctrine—another exception to the exclusionary rule, id.at 443–44. The independent source doctrine “allows admission of evidence that
has been discovered by means wholly independent of any constitutional
violation” because exclusion of such evidence would not serve the exclusionary
rule’s deterrent purpose. Id. at 443. Instead, exclusion would put the prosecution
“in a worse position simply because of some earlier police error or misconduct,”
thereby upsetting the balance between “the interest of society in deterring
unlawful police conduct and the public interest in having juries receive all
probative evidence of a crime.” Id. In Nix, the Court applied the same reasoning
to endorse the inevitable discovery doctrine as an extension of the independent
20
source doctrine: “If the prosecution can establish by a preponderance of the
evidence that the information ultimately or inevitably would have been
discovered by lawful means . . . then the deterrence rationale has so little basis that
the evidence should be received. Anything less would reject logic, experience, and
common sense.” Id. at 444 (footnote omitted).
Applying the inevitable discovery doctrine in Nix, the Supreme Court
affirmed the denial of a motion to suppress evidence related to the body of a 10-
year-old murder victim, which the defendant had helped law enforcement locate
following an unlawful custodial interrogation. See id. at 448–50. At the time of the
interrogation, some 200 volunteers were already methodically searching “all
roads, abandoned farm buildings, ditches, culverts, and any other place in which
the body of a small child could be hidden” within a multi-square mile area of a
highway rest stop where items belonging to the missing child (and the defendant)
had been found. Id. at 434–35. When the defendant agreed to show police where
he had hidden the child’s body, the search was halted, at which time searchers
were only two and a half miles from the ditch in which the child’s body was
located—“essentially within the area to be searched.” Id. at 436.
The Supreme Court held that the independent source doctrine did not apply
in Nix because the defendant’s statements “indeed led police to the child’s body.”
Id. at 443. The inevitable discovery doctrine, however, did apply because “it is
clear that the search parties were approaching the actual location of the body”
when the defendant agreed to cooperate. Id. at 449. In short, had the defendant
not led police to the body, “the volunteer search teams would have resumed the
search . . . and the body inevitably would have been found.” Id. at 449–50.
Soon after Nix, this court applied the inevitable discovery doctrine in
affirming the denial of a motion to suppress a false passport and driver’s license
seized during a warrant-supported search of the defendant’s apartment despite
the fact that these items had been discovered a few hours earlier during an
21
unlawful, warrantless “bomb sweep” of the same premises. See United States v.
Whitehorn, 829 F.2d 1225, 1231–32 (2d Cir. 1987). We explained,
Agents at the F.B.I. office actually began the warrant application
process over an hour before the illegal bomb sweep of [the
defendant’s] apartment occurred. They had already pinpointed the
apartment to be searched. Through interviews with neighbors as well
as prior extensive investigation, they knew that two of the
apartment’s occupants . . . had a history of trafficking in false
identification documents, weapons, and explosives; indeed, the night
before [they] had been arrested carrying all but the latter. In short,
the agents had overwhelming probable cause before the bomb sweep
to search the apartment in the belief that it was being used . . . as a
“safe house” for federal fugitives in which false identification
documents and other types of information detected by the bomb
sweep reasonably could be expected to be found.
Id. at 1231.
As Nix and Whitehorn demonstrate, the inevitable discovery doctrine
requires that the means by which the evidence would inevitably be discovered is
independent from the means by which the evidence was actually—and
unlawfully—discovered. Consistent with this principle, the investigation
supporting a claim of inevitable discovery cannot itself have occurred only
because the misconduct resulting in actual discovery was exposed. See generally
Nix v. Williams, 467 U.S. at 448 (observing that “when . . . evidence in question
would inevitably have been discovered without reference to the police error or
misconduct, there is no nexus sufficient to provide a taint and the evidence is
admissible” (emphasis added)); WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE
§ 9.3(e) (4th ed. 2022) (observing that “fact making discovery inevitable must arise
from circumstances other than those disclosed by the illegal search itself” (internal
quotation marks omitted)).
22
This comports with the requirement for “a high level of confidence that each
of the contingencies required” for lawful inevitable discovery of the disputed
evidence “would in fact have occurred.” United States v. Heath, 455 F.3d at 55;
accord In re 650 Fifth Ave. & Related Props., 830 F.3d at 102 (“We have previously
characterized the Government’s obligation as one of ‘certitude’ that the evidence
would have been discovered.”). In other words, the inevitable discovery doctrine
does not apply simply because “a reasonable police officer could have” lawfully
discovered the evidence at issue; rather, it applies where the record establishes
“with a sufficiently high degree of certainty that a reasonable police officer would
have” lawfully discovered the evidence regardless of the disclosure of any legal
defect in the actual discovery of the evidence. United States v. Heath, 455 F.3d at 58(emphases in original).
Here, the district court determined that the government would have
inevitably discovered the CSLI placing Molina’s -2454 cell phone in Mahopac at
the time of the Mahopac Robbery because the government could have obtained a
lawful warrant for these records once it corrected the timing error in the initial
requisition form for tower records submitted to T-Mobile (and thereby learned
that Molina’s -2454 cell phone had “pinged” a tower in the vicinity of the Mahopac
Verizon store on the date and close to the time that it was robbed). Further, the
district court determined that the government inevitably would have discovered
that Molina communicated with Rodriguez close to the time of the New Milford
Robbery when it lawfully searched Rodriguez’s -1912 cell phone (seized at the time
of his arrest) and discovered contact information linking Molina to the -4879 cell
phone number.
The fundamental flaw with the district court’s reasoning is that it rests on
the assumption that the government, once alerted to defects in the March 29 and
April 23 Warrants, could easily have corrected or supplemented its initial
supporting affidavits and thereby procured lawful warrants. But the inevitable
23
discovery doctrine does not ask whether the government lawfully could have
obtained the evidence at issue by means of corrected warrant affidavits or that it
would have done so after the defense alerted it to defects in its initial affidavits.
Rather, inevitable discovery asks whether the government has shown that it
certainly would have discovered the evidence by a lawful means even if no warrant
had been issued or challenged. That is not this case.
The record here indicates that, but for the defense’s exposure of
misstatements in the warrant affidavits, the government would have had no
reason—and, therefore, would have been unlikely—to pursue alternative lawful
means to procure the evidence at issue. Certainly, the record is bereft of any
evidence that, in the two-month interval between the government learning of
Molina’s link to the -4879 cell phone and Molina’s suppression motion, the
government took any steps to seek new warrants lawfully to obtain the challenged
evidence. Similarly, no record evidence indicates that, before Molina’s
suppression motion highlighted dating and other errors in the warrant affidavits,
the government took any steps to correct those affidavits or otherwise ensure
probable cause for the warrants they supported. 11 In these circumstances,
Molina’s suppression motion could not be denied on the ground of inevitable
discovery.
C. Remand Required for Further Franks Inquiry
1. The Two-Part Franks Inquiry
In the absence of an inevitable-discovery exception, Molina’s suppression
motion is properly reviewed under Franks v. Delaware, 438 U.S. 154. The Supreme
Court there held that where a search is conducted pursuant to a judicially
authorized warrant, a “presumption of validity” obtains “with respect to the
11Thus, on this appeal we have no occasion to consider whether the challenged evidence would have been
admissible if the government had actually obtained new warrants supported by affidavits containing no
misstatements.
24
affidavit supporting the search warrant.” Id. at 171. To overcome that
presumption, a defendant must,
make[] a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth,
was included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable cause,
the Fourth Amendment requires that a hearing be held at the
defendant’s request. In the event that at that hearing the allegation of
perjury or reckless disregard is established by the defendant by a
preponderance of the evidence, and, with the affidavit’s false material
set to one side, the affidavit’s remaining content is insufficient to
establish probable cause, the search warrant must be voided and the
fruits of the search excluded to the same extent as if probable cause
was lacking on the face of the affidavit.
Id. at 155–56. Thus, a defendant seeking “[t]o suppress evidence obtained
pursuant to an affidavit containing erroneous information” must satisfy both a
state of mind requirement and a materiality requirement by showing that “‘(1) the
claimed inaccuracies or omissions are the result of the affiant’s deliberate
falsehood or reckless disregard for the truth; and (2) the alleged falsehoods or
omissions were necessary to the issuing judge’s probable cause finding.’” United
States v. Canfield, 212 F.3d 713, 717–18 (2d Cir. 2000) (brackets omitted) (quoting
United States v. Salameh, 152 F.3d 88, 113 (2d Cir. 1998)). The materiality
requirement is often considered first because, as the Supreme Court explained in
Franks, “if, when material that is the subject of the alleged falsity or reckless
disregard is set to one side, there remains sufficient content in the warrant to
support a finding of probable cause, no hearing is required.” 438 U.S. at 171–72;
see 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT § 4.4(c) (6th ed. 2022) (explaining that “Franks approach . . . obviates
the need for any hearing at all except in those cases in which the allegedly false
statement would undo the probable cause finding”). See generally United States v.
25
Trzaska, 111 F.3d 1019, 1027 (2d Cir. 1997) (observing that “[e]very statement in a
warrant affidavit does not have to be true” to avoid suppression).
2. The Misstatements in This Case Were Material to Identifying
Probable Cause To Obtain CSLI for Molina’s -2454 Cell
Phone
a. Correcting the Challenged Affidavits Requires
Deletion of Misstatements, not Addition of Truthful
Facts Known at the Time of the Applications
To determine the materiality of alleged misstatements, courts “correct” the
warrant affidavit and determine whether the affidavit, so corrected, establishes
probable cause. If it does, the misstatements were immaterial, and suppression is
unnecessary. If it does not, the misstatements were material, and the court must
proceed to consider the affiant’s state of mind in making the statement. See id. at
1027–28.
The government suggests that affidavit correction not only requires the
deletion of misstatements but also permits the addition of truthful information
supporting probable cause that was possessed by investigating officers at the time
the warrant was sought. See Suppl. Appellee Br. 3–4. This court appears first to
have applied this expansive view of the corrected affidavit doctrine in a civil rights
action against law enforcement officers for money damages. See Martinez v. City
of Schenectady, 115 F.3d 111, 115 (2d Cir. 1997) (stating that “‘corrected affidavits’
doctrine . . . requires us to examine all the information the officers actually
possessed when they applied for the search warrant”). It is only in that context,
however, that we have so applied the doctrine. See, e.g., Escalera v. Lunn, 361 F.3d
737, 743–44 (2d Cir. 2004); accord Ganek v. Leibowitz, 874 F.3d at 85 n.6; McColley v.
County of Rensselaer, 740 F.3d 817, 823 (2d Cir. 2014).
By contrast, in criminal cases—where the question is not whether to award
damages against individual officers but whether to admit unlawfully obtained
26
evidence in support of conviction—this court has applied the doctrine more
narrowly, stating that “related facts which were also known [by law enforcement
officers] at the time of the [warrant] application . . . lie outside the scope of a
proper Franks inquiry because the relevant question is whether the remaining
portions of the affidavit give rise to probable cause.” United States v. Awadallah, 349
F.3d 42, 70 n.22 (2d Cir. 2003) (emphasis in original) (internal quotation marks
omitted); see also United States v. Lowe, 516 F.3d 580, 585 n.2 (7th Cir. 2008) (stating
that “reviewing court should simply look at the affidavit with the false statements
excised instead of also considering the new, truthful information presented at, for
instance, a Franks hearing”). Thus, in the context of a criminal case, a warrant
affidavit may be corrected by supplementation only when the supplemental
information detracts from, rather than supports, probable cause. See United States
v. Rajaratnam, 719 F.3d 139, 146 (2d Cir. 2013) (observing that “literal Franks
approach does not seem adequate” for omissions, which “cannot be deleted;
therefore a better approach would be to insert the omitted truths revealed at the
suppression hearing” (brackets, ellipses, and internal quotation marks omitted));
United States v. Yusuf, 461 F.3d 374, 388 n.12 (3d Cir. 2006) (“Additional
information may be incorporated into an affidavit only if we determine that a
government agent made a material omission.”); see also United States v. Colkley, 899
F.2d 297, 301 (4th Cir. 1990) (“For an omission to serve as the basis for a hearing
under Franks, it must be such that its inclusion in the affidavit would defeat
probable cause for arrest.”). In making this exact point, Professor LaFave has
observed,
an affidavit with knowing falsehoods in it . . . should not be open to
rehabilitation by a process of substituting for the affiant’s lies other
information that is really the truth from which he deliberately
departed. To treat the case as an omission situation and then
substitute that which was “omitted” fails to recognize that such
27
addition to the affidavit is appropriate only as to omitted information
tending to cast some doubt on the probable cause otherwise shown.
2 LAFAVE, SEARCH AND SEIZURE, supra at 25 § 4.4(c).
In sum, the expansive view of the corrected affidavit doctrine applied in
civil damages actions is not pertinent here. The materiality of the acknowledged
misstatements in this criminal case must be determined by deleting these
misstatements from the March 29 and April 23 Warrant affidavits and then
deciding whether facts remaining in the affidavits are sufficient to establish
probable cause. This is a legal question that we review de novo. See United States
v. Canfield, 212 F.3d at 717.
b. The Corrected Warrant Affidavits Do Not Identify
Probable Cause To Obtain Molina’s -2454 Cell Phone
Records
As noted supra at 11–14, the March 29 and April 23 Warrant affidavits
contain numerous misstatements requiring correction.
First, the March 29 Warrant affidavit incorrectly attributes Molina’s -2454
cell phone to Rodriguez and Rodriguez’s -1912 cell phone to Molina. See supra at
Note 5. This error was corrected, however, in the April 23 Warrant affidavit, which
appears to have yielded the same evidence with respect to Molina as the March 29
Warrant. For that reason and because the March 29 Warrant affidavit fails to
provide probable cause for the issuance of the March 29 Warrant even with
accurate attributions for these cell phones, see infra at 33–35, we do not consider
this misstatement further.
Second, the affidavits state that on August 10, 2017, shortly before and after
the New Milford Robbery, Lauria’s -3972 cell phone was in communication with
both Rodriguez’s -1912 and Molina’s -2454 cell phones. In fact, there was no
evidence of communication between Lauria’s -3972 and Molina’s -2454 cell phones
28
on August 10, 2017. Thus, consistent with the law discussed supra at 26–28, we
correct the affidavits by deleting this statement. We do not, however, add the
then-known fact that, on the date of the New Milford Robbery, Rodriguez’s -1912
cell phone was in repeated communication with a -4879 number, or the
subsequently learned fact that the -4879 number was linked to Molina.
Third, the affidavits state that the Mahopac Robbery occurred on
February 19, 2019, when it in fact occurred on February 15, 2019. Here, too, we do
not substitute the actual robbery date for the misstated one. Rather, we delete the
erroneous day of the month from the affidavits, leaving only the correct statement
that the Mahopac Robbery occurred in February 2019.
Fourth, the affidavits report toll records and CSLI pertaining to Lauria’s
-3972, Rodriguez’s -1912, and Molina’s -2454 cell phones for the date February 19,
2019. Because the records in fact pertain to February 15, 2019, we delete the
erroneous day of the month reported in the affidavits, leaving only the correct
month and year.
Fifth, the affidavits report that the referenced CSLI shows Lauria’s -3972,
Rodriguez’s -1912, and Molina’s -2454 cell phones all to have been in the vicinity
of the Mahopac store on February 19, 2019. In fact, the FBI had no information as
to where these phones were on February 19. As for February 15, the date of the
Mahopac Robbery and the referenced records, the records showed only Lauria’s
-3972 and Rodriguez’s -1912 cell phones to have been in Mahopac. The location of
Molina’s -2454 cell phone on the February 15, 2019 robbery date was then
unknown. Thus, we delete any reference to the location of Molina’s -2454 cell
phone, whether on February 15 or February 19.
Sixth, the affidavits report that “on February 19, 2019, shortly before and
after the Mahopac Store robbery,” Lauria’s -3972 cell phone was in communication
with both Rodriguez’s -1912 and Molina’s -2454 cell phones. Two misstatements
29
here call for correction: (1) the February 19 date, and (2) the report of
communications “after” the Mahopac Robbery, for which there was then no
factual basis. Thus, the corrected statement is that “in February 2019, shortly
before the Mahopac Store robbery,” there was the reported communication among
the three phones.
With these corrections, the affidavits state the following pertinent facts:
1. The New Milford and Mahopac Robberies were each committed
(a) at a “cellular phone store,”
(b) at approximately the same time of day (i.e., 7:45 p.m.),
(c) by three persons (one described at both robberies as a “thin,
white male”),
(d) employing the same general modus operandi, i.e., (i) robbing the
stores at gunpoint, (ii) restraining victims with zip-ties, and
(iii) fleeing the scene in “a dark-colored Honda Accord sport,
with distinctive [tire] rims.”
March 29 Warrant Aff. ¶¶ 8, 12; April 23 Warrant Aff. ¶¶ 9, 14.
2. A fingerprint lifted from the east door of the New Milford store,
through which one robber had exited, matched a fingerprint of
Lauria’s retrieved from a law enforcement database. See March 29
Warrant Aff. ¶ 8(f), (h); April 23 Warrant Aff. ¶ 9(f), (h).
3. Various records linked a -3972 cell phone to Lauria, a -1912 cell phone
to Rodriguez, and a -2454 cell phone to Molina. See April 23 Warrant
Aff. ¶¶ 4, 10.
4. Toll records showed communication “shortly before and shortly
after” the New Milford Robbery between Lauria’s -3972 and
Rodriguez’s -1912 cell phones. March 29 Warrant Aff. ¶ 8(i); April 23
Warrant Aff. ¶ 9(i).
30
5. Lauria’s Facebook page showed him to be “friends” with “Suspects”
Brian Rodriguez and Anthony Molina. March 29 Warrant Aff. ¶ 11;
April 23 Warrant Aff. ¶ 13.
6. During the Mahopac Robbery, one of the robbers had referred to
another robber as “Brian.” March 29 Warrant Aff. ¶ 12(g); April 23
Warrant Aff. ¶ 14(g).
7. Cell tower logs showed that Lauria’s -3972 and Rodriguez’s -1912 cell
phones had been in the vicinity of the victimized Mahopac store
during the month of the Mahopac Robbery. See March 29 Warrant
Aff. ¶ 13; April 23 Warrant Aff. ¶ 15.
8. Toll records showed that “shortly before” the Mahopac Robbery,
there was communication between Lauria’s -3972 cell phone and
Rodriguez’s -1912 and Molina’s -2454 cell phones. March 29 Warrant
Aff. ¶ 14; April 23 Warrant Aff. ¶ 16.
The law is well established that probable cause to search a location for—or,
in the case of CSLI, to demand—particular items or records is demonstrated where
a totality of circumstances indicates a “fair probability that contraband or evidence
of a crime will be found” thereby. Illinois v. Gates, 462 U.S. 213, 238 (1983). This
standard does not demand “hard certainties,” id. at 231 (internal quotation marks
omitted), but it does require more than a “hunch,” the latter being insufficient to
support even an investigative stop, Terry v. Ohio, 392 U.S. 1, 22, 27 (1968). Rather,
probable cause must be grounded in sufficient facts to establish the sort of “fair
probability” on which “reasonable and prudent men, not legal technicians, act.”
Illinois v. Gates, 462 U.S. at 231, 238, 241 (internal quotation marks omitted); see
Florida v. Harris, 568 U.S. 237, 244 (2013) (describing probable cause as “practical,”
“common-sensical,” “all-things-considered” standard for assessing probabilities
in particular factual context). That showing is, in turn, informed by the breadth of
the search authorization sought. See United States v. Clark, 638 F.3d 89, 94 (2d Cir.
2011) (cautioning that “breadth of” search must not “outrun[] the probable cause
supporting the warrant”). See generally Maryland v. Garrison, 480 U.S. 79, 84 (1987)
31
(observing that search authorization is properly limited to “specific areas and
things for which there is probable cause” to search to “ensure[] that the search will
be carefully tailored to its justifications, and will not take on the character of the
wide-ranging exploratory searches the Framers intended to prohibit”).
On this appeal, we review warrants authorizing broad CSLI searches for
Molina’s -2454 cell phone records supported by few facts. As to breadth, the
warrants authorized disclosure of minute-by-minute location data for Molina’s
-2454 cell phone for six weeks in 2017 and six weeks in 2019 (the March 29
Warrant), and for over four months in 2019 (the April 23 Warrant). See supra at 8–
9. This calls for some caution in assessing probable cause because, as the Supreme
Court has observed, modern cell phone usage is so ubiquitous that this type of
location information can reveal not only nearly the whole of an individual’s
movements but also, in the process, much about his personal and professional life.
See Carpenter v. United States, 138 S. Ct. at 2217 (explaining, in context of ruling that
government acquisition of CSLI is “search” within meaning of Fourth
Amendment, that these records “provide[] an all-encompassing record of the [cell
phone user’s] whereabouts . . . [,] revealing not only his particular movements, but
through them his familial, political, professional, religious, and sexual
associations” (internal quotation marks omitted)); see also Riley v. California, 573
U.S. at 385 (remarking that “modern cell phones” are “such a pervasive and
insistent part of daily life that the proverbial visitor from Mars might conclude
they were an important feature of human anatomy”). 12
12Because Molina does not challenge the government’s initial procurement of the narrower March 4, 2019
tower extraction warrant for information identifying cell phone numbers that accessed towers closest to
the Mahopac store in a two-hour period on the date of the Mahopac Robbery, see supra at 7–8, we need not
here consider whether such a warrant presents the same privacy concerns as those highlighted in Carpenter.
The question appears open because, in Carpenter, the Supreme Court stated that its holding that a
government demand for historical CSLI constitutes a search is “narrow,” and that it expressed no view “on
matters not before us,” such as the “download[ing] of information on all the devices that connected to a
particular cell site during a particular interval.” Carpenter v. United States, 138 S. Ct. at 2220. Thus,
32
On correction of the challenged affidavits, only two “facts” relating
specifically to Molina or to his -2454 cell phone support these expansive warrants:
(1) Molina is Facebook “friends” with Lauria, and (2) Molina’s -2454 cell phone
was in communication with Lauria’s -3972 cell phone in February 2019 “shortly
before” the Mahopac Robbery. See supra at 30–31. These facts are insufficient to
demonstrate a “reasonable probability” that the sought months of records for
Molina’s -2454 cell phone would contain evidence pertaining to the New Milford
and Mahopac Robberies.
Upon correction, the challenged affidavits contain no facts linking Molina or
his -2454 cell phone to the New Milford Robbery. Molina’s Facebook friendship
with Lauria does not do so. The mere fact that persons know each other does not
make it probable that they are criminal confederates. See generally Dufort v. City of
New York, 874 F.3d 338, 350 (2d Cir. 2017) (holding probable cause to arrest not
established “simply because a suspect has suspicious acquaintances”). Such a
conclusion is particularly apt here where the warrant affidavits contain no
information as to the number of Molina’s Facebook friends or the anonymous tip
that first identified the three men as participants in the New Milford Robbery. 13
Carpenter’s ruling gives no reason to doubt that law enforcement officers lawfully could have obtained
more limited cell tower information—for example, information simply telling whether Molina’s
-2454 cell phone was in the vicinity of the Mahopac store at or near the time of the robbery—without need
to show probable cause that Molina or the -2454 cell phone in particular were involved in the robbery, see
United States v. James, 3 F.4th 1102, 1105–06 (8th Cir. 2021), cert. denied, 142 S. Ct. 1352 (2022), and even
without need to show probable cause at all, cf. Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984) (stating
that administrative subpoenas require “that the subpoena be sufficiently limited in scope, relevant in
purpose, and specific in directive so that compliance will not be unreasonably burdensome” and holding
that “the defenses available to [the recipient] do not include the right to insist upon a judicial warrant a
condition precedent to a valid administrative subpoena” (internal quotation marks omitted)), discussed in
Carpenter v. United States, 138 S. Ct. at 2254 (Alito, J., dissenting).
13 See Aaron Smith, What People Like and Dislike About Facebook, PEW RSCH. CTR. (Feb. 3. 2014),
https://www.pewresearch.org/fact-tank/2014/02/03/what-people-like-dislike-about-facebook/ (reporting
that average number of Facebook “friends” for adults is 338, with “27% of 18–29 year old Facebook users
hav[ing] more than 500 friends in their network”).
33
As for communication between Lauria’s -3972 and Molina’s -2454 cell
phones “shortly before” the Mahopac Robbery, that fact is insufficient to warrant
the production of months of detailed CSLI for the -2454 cell phone. That
conclusion is reinforced by what the affidavits do not say about this
communication. They do not say whether Lauria’s -3972 cell phone or Molina’s
-2454 cell phone initiated the call. They do not indicate what the affiant means by
“shortly before” the robbery, a point that takes on added significance when the
original misstated February 19, 2019 date is corrected to reference the entire month
of February 2019. They do not indicate how many calls these two cell phones made
on the date they communicated with each other. If Lauria’s -3972 cell phone
initiated the call within minutes of the robbery, and made and received few other
calls around that time, that might provide a reasonable basis to think it probable
that the subject of the call was the robbery and that the call recipient was a
confederate in the crime. But that probability diminishes as the call becomes more
temporally remote from the crime and as the number of calls placed and received
increases. Further, if Molina’s -2454 cell phone initiated the call, even shortly
before the robbery, the possibility of coincidence increases, particularly in the
absence of any affidavit facts establishing the location of the -2454 cell phone or
otherwise linking that phone, or Molina himself, to the robberies at issue. 14
14In other search contexts, this court has cautioned against confusing “a fair probability that contraband or
evidence of a crime will be found in a particular place” with “probable cause to think that the person whose
premises are to be searched is implicated in the crime.” Ganek v. Leibowitz, 874 F.3d at 82 (internal quotation
marks omitted); see Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978). This is not to ignore the fact that
probable cause as to a person’s criminal conduct can sometimes inform probable cause to search a place
used or frequented by that person or to obtain records for electronic devices linked to that person. It is for
that reason that we here note that the corrected affidavits’ failure to demonstrate probable cause to think
that Molina participated in the subject robberies reinforces the conclusion that the affidavits fail to
demonstrate probable cause to think that months of CSLI records for Molina’s -2454 cell phone would yield
evidence of a crime.
34
Subsequently obtained records show that Molina’s -2454 cell phone did
initiate the call in question. See Crim. Compl. ¶ 25(h). But subsequently obtained
records also show that Molina’s -2454 cell phone was in Mahopac when it initiated
that call, just as his -4879 cell phone was in New Milford when communicating
with Lauria’s -3972 cell phone on the date of the New Milford Robbery. Had such
facts been included in the challenged warrant affidavits, they might well have
provided the probable cause necessary to demand toll records and CSLI for the
-2454 cell phone for the extended periods sought. The point for purposes of our
review, however, is that the corrected warrant affidavits provide no such
information. The sparse facts they provide pertaining to Molina and his -2454 cell
phone do not admit the probable cause findings necessary to support the broad
March 29 and April 23 Warrants.
Accordingly, because we conclude that the corrected affidavits do not state
probable cause to support the expansive March 29 and April 23 Warrants, we
conclude, as the district court did, that the deleted misstatements were material.
But because we hold, contrary to the district court, that the inevitable discovery
doctrine does not here apply, we conclude that a Franks hearing was necessary
before admitting evidence obtained by these warrants. We therefore remand to
the district court for that purpose.
3. The Franks Hearing on Remand
Under the Franks standard, material misstatements in warrant affidavits do
not necessarily demand suppression of evidence. To the contrary, even where
misstatements are material, a defendant’s motion to suppress must be denied
“unless the misrepresentations . . . were intentional or deliberate, or were made in
reckless disregard for the truth.” United States v. Lambus, 897 F.3d at 399.
Misstatements resulting from “negligence or innocent mistake do not warrant
suppression.” Id. (alteration and internal quotation marks omitted).
35
On the record as it stands before this court, the misstatements in the
March 29 and April 23 Warrant affidavits could be more indicative of negligence
or mistake than intentional falsity or reckless disregard for the truth. The number
of cell phones under investigation, the time required to link particular phones to
particular users, and the number of service providers producing cell phone
records could support a finding that confusion rather than intent to “deceive” or
“mislead” may explain misattributions of phone users and locations. See id. (using
terms interchangeably). A measure of good faith also might be located in state and
federal officials’ routine and repeated application for judicial warrants to support
their procurement of evidence, as well as in their proceeding incrementally,
temporally limiting initial warrant requests for records of a few hours on specific
dates and expanding to weeks and months only as incriminating information was
obtained. Nothing in the record as developed so far shows a motive for the
warrant affiant to have deliberately or recklessly misled an issuing magistrate
judge as to the known facts. Indeed, it appears that an accurate presentation of
facts known to the FBI at the time of the warrant applications—certainly with
respect to the date of the Mahopac Robbery and certain phone records already
obtained, as well as law enforcement’s receipt of an apparently reliable tip
implicating Molina in the New Milford Robbery—might “have strengthened, not
weakened, the application’s proffer as to probable cause.” Id. at 400–01
(concluding that such circumstances were more indicative of “carelessness and
negligence than . . . knowing or deliberate falsehoods, reckless disregard, or
perjury”). On the other hand, it is possible that with more factual development
concerning the warrant affiant’s state of mind, the pervasiveness of errors could
support a finding that that certain misstatements were made deliberately or with
reckless disregard for the truth.
We do not pursue the matter further ourselves because whether an affiant
acted negligently or with an intent to “deceive” or “mislead” or with a “reckless
disregard for the truth is a factual question” best addressed by the district court,
36
which is better situated to develop the factual record, observe the witnesses, and
assess their credibility. Id. at 399 (internal quotation marks omitted). We
nevertheless note that if on remand here, the district court finds that the material
misstatements in the March 29 and April 23 Warrant affidavits were made with
intent to deceive or mislead or with reckless disregard for the truth, then the
challenged evidence should have been suppressed, and the district court must
consider whether its admission of such evidence at trial requires vacatur of
Molina’s conviction or is harmless so as to allow the conviction to stand. If,
however, the district court finds that the material misstatements were not made
with deceitful or misleading intent or reckless disregard for the truth, but resulted
from negligence, carelessness, or simple mistake, then no suppression was
required, and Molina’s conviction (at least on Counts I, II, IV, and V, the robbery
counts) can stand undisturbed.
II. Challenged Jury Instruction
We turn now to Molina’s jury charge challenge to his conviction on
Counts III and VI, the firearms charges. “We review de novo a properly preserved
challenge to a jury instruction, reversing where the charge, viewed as a whole,
either failed to inform the jury adequately of the law or misled the jury about the
correct legal rule,” United States v. Raniere, 55 F.4th 354, 362 (2d Cir. 2022) (quoting
United States v. Capers, 20 F.4th 105, 116 (2d Cir. 2021)), thereby prejudicing the
defense, see United States v. Hoskins, 44 F.4th 140, 154 (2d Cir. 2022) (explaining
reversal warranted only where charging error is “prejudicial” (internal quotation
marks omitted)).
Molina argues that the district court’s refusal (1) to include his requested
instruction that “a pellet gun, imitation, facsimile or toy gun does not constitute a
firearm” and (2) to omit the instruction that “a gun is a firearm” misled the jury
about the correct legal rule because, as this court has explained, “not all guns are
firearms.” United States v. Rosa, 507 F.3d at 145 n.1 (“BB guns and staple guns, for
37
example, are not [firearms]” within definition applicable to § 924(c) offenses); see
Appellant Br. 50–58. Molina contends that this instruction was misleading in
“equating all guns with firearms,” thereby undermining his defense that the “gun”
used in the commission of the subject robberies was not a “firearm” for purposes
of the charged crime. Appellant Br. 57.
Our decision in Rosa supports Molina’s argument. To be sure, the district
court here correctly charged the jury, consistent with the statutory definition, that
a firearm “means any weapon, which will or is designed to or may readily be
converted to expel a projectile by the action of an explosive.” Trial Tr. 553; see 18
U.S.C. § 921(a)(3) (providing this definition). But in concluding its instructions
with the statement, “I instruct you that a gun is a firearm,” Trial Tr. 554, the district
court injected confusion insofar as a juror might have understood the court to be
stating that if the weapon were a “gun” it necessarily satisfied the statutory
definition of firearm. After Rosa, this court has summarily identified error in an
instruction that “a gun is a firearm” even when coupled with the statutory
definition of “firearm.” See United States v. Cedeño, 437 F. App’x 8, 12 (2d Cir. 2011).
We do the same in this published opinion.
In urging against vacatur, the government argues that the charging error
was harmless because compelling evidence demonstrated that the guns
brandished during the New Milford and Mahopac Robberies were firearms under
the charged statute. The argument fails to persuade. No gun brandished during
the New Milford or Mahopac Robberies was ever recovered. Thus, there was no
opportunity for the jurors to see the guns at issue or for any expert testimony
supporting their identification as firearms. Such expert evidence was not required
to convict. Further, the jury was entitled to rely on eyewitness victim testimony
about the guns brandished at them during the robbery. But the issue here is not
the sufficiency of the evidence adduced to support conviction. It is the
harmlessness of the charging error. Through cross-examination, Molina was able
38
to develop some evidence suggesting that the weapons used in the robberies were
pellet guns or guns otherwise not qualifying as firearms. See supra at 15–16. It is
on this record that the instruction that “a gun is a firearm” caused confusion,
precluding a confident conclusion that, absent the erroneous instruction, “the jury
would have returned the same verdict beyond a reasonable doubt.” United States
v. Gomez, 580 F.3d 94, 101 (2d Cir. 2009) (discussing harmless charging error).
Accordingly, we vacate Molina’s convictions on Counts III and VI, and
remand for further proceedings as to those counts, including possible retrial with
correct jury instructions. 15
CONCLUSION
To summarize:
1. Molina’s motion to suppress evidence should not have been denied
on the ground of inevitable discovery because the government has
not shown that it would inevitably have discovered the evidence in
question had Molina never challenged its warrant affidavits.
2. Acknowledged misstatements in the challenged warrant affidavits
were material to the issuing magistrate judges’ findings of probable
cause because, when we correct the affidavits to delete the
misstatements, the facts remaining do not state probable cause
sufficient to support the warrants obtained.
3. Because the misstatements were material and because inevitable
discovery does not apply, the district court was required to conduct a
Franks hearing to determine the state of mind with which the
misstatements were made, suppressing evidence if the misstatements
Because we conclude that the district court’s instruction that “a gun is a firearm” requires vacatur, we do
15
not opine on whether Molina was entitled to the jury instruction he specifically requested.
39
were made with intent to deceive or mislead or with reckless
disregard for the truth, or denying suppression if the misstatements
were made negligently, carelessly, or through simple mistake.
Remand for such a hearing is required with the district court directed
to maintain or vacate Molina’s conviction on Counts I, II, IV, and V
(the robbery counts) depending on its findings.
4. The district court erred in instructing the jury that “a gun is a
firearm,” and because we cannot conclude that the error was
harmless, we vacate Molina’s conviction on Counts III and VI (the
firearms counts) and remand for further proceedings, including
possible retrial on correct instructions.
Accordingly, and for the reasons stated in this opinion, we VACATE the
district court’s September 25, 2020 order denying Molina’s motion to suppress
evidence obtained through the defective March 29 and April 23 Warrants on the
ground of inevitable discovery; and we REMAND pursuant to United States v.
Jacobson, 15 F.3d 19 (2d Cir. 1994), for the district court’s further consideration of
that motion consistent with Franks v. Delaware, 438 U.S. 154 (1978), and its
determination whether to vacate or maintain Molina’s October 12, 2021 judgment
of conviction on Counts I, II, IV, and V (the robbery counts) consistent with this
opinion. We further VACATE Molina’s October 12, 2021 judgment of conviction
on Counts III and VI (the firearms counts); and we REMAND for further
proceedings consistent with this opinion, including possible retrial on proper jury
instructions. Any further appeal in this case shall be assigned to this panel.
40