from the United States District Court for the District of
Colorado (D.C. No. 1:16-CR-00129-WJM-1)
S. Schmidt (Tyler J. Emerson, with her on the briefs), Conlee
Schmidt & Emerson, LLP, Wichita, Kansas, appearing for
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.
BRISCOE, HOLMES, and McHUGH, Circuit Judges.
BRISCOE, CIRCUIT JUDGE.
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.
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.
The Community Intensive Supervision Program
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.
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
14. You shall allow your CPO to search your person, vehicle,
residence or any property under your control.
App. Vol. I at 172, 173.
Mathews's State Imprisonment, Release, and Subsequent
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.
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. 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 to have his ankle
monitor replaced, and Mathews did so on October 7, 2015.
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.
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.
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
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 ...