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United States v. Mathews

United States Court of Appeals, Tenth Circuit

July 1, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
VINCENT SCOTT MATHEWS, Defendant-Appellant.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CR-00129-WJM-1)

          Kari S. Schmidt (Tyler J. Emerson, with her on the briefs), Conlee Schmidt & Emerson, LLP, Wichita, Kansas, appearing for Appellant.

          Karl L. Schock, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Colorado, Denver, Colorado, appearing for Appellee.

          Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.


         Defendant Vincent Scott Mathews appeals three convictions: two for interfering with commerce by robbery in violation of 18 U.S.C. § 1951 and one for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He argues that the district court (1) improperly denied his motion to suppress evidence related to an unconstitutional search of his historical GPS data that was collected when he was serving a state sentence, (2) abused its discretion when it ruled on the admissibility of this evidence without first holding a suppression hearing, and (3) abused its discretion when it allowed the government's expert to testify without first holding a Daubert hearing. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.


         Mathews was convicted of state crimes in Colorado in 2009 and 2011 and was sentenced to a term of imprisonment. We begin by describing certain relevant operations of the Colorado Department of Corrections ("CDOC") which are applicable to individuals serving state sentences. We will then recount the facts leading to Mathews's arrest on federal charges and subsequent federal convictions.

         A. The Community Intensive Supervision Program

         The CDOC has multiple statuses for individuals who are serving criminal sentences. There is the traditional incarcerated status where an inmate is housed in a prison. There is also a residential corrections facility (i.e. half-way house) status for inmates transitioning from incarceration. Separate, and different, from the residential corrections facility status is Colorado's Community Intensive Supervision program. See Colo. Rev. Stat. § 17-27-102(3) (defining a community corrections program); id. § 17-27.5-101 (providing the authority for the CDOC to establish intensive supervision programs). Each inmate who enters the Community Intensive Supervision program is presented with a Community Supervision Lawful Order ("CSL Order") and meets with a Community Parole Officer ("CPO") employed by the CDOC to discuss the CSL Order and its terms. The Community Intensive Supervision program is separate from parole but may be required as a condition of parole. Mathews did not enter the Community Intensive Supervision program as a condition of parole. Instead, he was still considered an inmate while he participated in the Community Intensive Supervision program. In other words, he was still incarcerated, just not physically confined within a prison cell.

         On September 10, 2015, Mathews met with his CPO, Wendy Beach, to review the CSL Order. He placed his initials next to all thirty directives/lawful orders detailed in the CSL Order and signed it; CPO Beach signed the CSL Order as well. The following were among the directives/lawful orders:

4. You are to be monitored by electronic surveillance equipment and you are responsible for the care, safekeeping, and return of the equipment. You may be required to install your electronic monitoring equipment as instructed by your CPO or a representative of a contracting agency. Installation shall be made immediately upon your return to your residence of record.
14. You shall allow your CPO to search your person, vehicle, residence or any property under your control.

App. Vol. I at 172, 173.

         B. Mathews's State Imprisonment, Release, and Subsequent Actions

         In 2015, Mathews was serving a period of incarceration with the CDOC for his prior state convictions. By early 2015, he was serving his sentence at a residential corrections facility and was assigned to an unidentified CPO. Greater restrictions were placed on Mathews on September 10, 2015, when he was moved from a residential corrections facility to the Community Intensive Supervision program. CPO Beach was assigned to be his CPO, and the two signed the above-mentioned CSL Order.

         According to CPO Beach, there are two types of electronic surveillance used in the Community Intensive Supervision program. First, there is electronic home monitoring, known as a "cell unit." A cell unit only determines whether an individual is in his or her home at required times. Second, there is GPS location monitoring. Unlike a cell unit, GPS location monitoring "provides an offender's actual location on a continuous basis." Id. at 235. Mathews was originally placed on a cell unit, but on October 1, 2015, Mathews was implicated in certain specific criminal activity.[1] Based on this information, as well as follow-up conversations with the detective who implicated Mathews in the criminal activity, CPO Beach and her supervisor decided to change Mathews from a cell unit to GPS location monitoring. CPO Beach informed Mathews that he needed to report to a BI, Inc. facility[2] to have his ankle monitor replaced, and Mathews did so on October 7, 2015.

         The historical GPS data produced by the ankle monitor is stored in a database and is accessible through a software program called Total Access. BI provides Total Access to the CDOC. The software is web-based and requires a log-in password for access. Historical GPS data is not deleted from Total Access, and each piece of data includes a longitude-latitude coordinate, direction of travel, speed, date, and time.

         The record reflects that each CPO with the CDOC has log-in credentials for Total Access which permit the CPO to review all of the GPS data recorded in the Total Access database. One of the CPOs who has log-in credentials for Total Access is Aaron Anderson. In addition to his CPO duties for the CDOC, Anderson has been a task force officer with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") since June 2014. His "dual role" is understood and approved by both the ATF and CDOC.

         In 2015, Anderson "was involved" in investigating a string of pawnshop robberies. App. Vol. I at 253. In late October 2015, the ATF investigation team identified Mathews as a possible suspect. Around this time, Anderson contacted CPO Beach to discuss Mathews's potential involvement in the pawnshop robberies and learned that Mathews was on constant GPS location monitoring. As the investigation continued, Mathews remained a peripheral suspect.[3]

         Two more pawnshop robberies came to the attention of the investigators, one on December 21, 2015, and another on March 23, 2016. After the pawnshop robbery on March 23, 2016, the investigators asked Anderson to check Mathews's historical GPS data for December 21, 2015, and March 23, 2016. Anderson accessed Mathews's historical GPS data for those dates, and the data placed Mathews in the vicinity of the robberies. Anderson subsequently used this information to obtain a ...

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