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    United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT

    Argued November 17, 2009 Decided August 6, 2010

    No. 08-3030

    UNITED STATES OF AMERICA,APPELLEE

    v.

    LAWRENCE MAYNARD,APPELLANT

    Consolidated with 08-3034

    Appeals from the United States District Courtfor the District of Columbia(No. 1:05-cr-00386-ESH-10)

    Sicilia C. Englert and Stephen C. Leckar, appointed bythe court, argued the causes for appellants. With them on thebriefs wasMichael E. Lawlor.

    David L. Sobel, Daniel I. Prywes, and Arthur B. Spitzer

    were on the brief for amici curiae American Civil LibertiesUnion of the National Capital Area and Electronic FrontierFoundation in support of appellant Jones.

    Case: 08-3030 Document: 1259298 Filed: 08/06/2010 Page: 1

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    Peter S. Smith, Assistant U.S. Attorney, argued the causefor appellee. With him on the brief wereRoy W. McLeese III, John V. Geise, and Rachel C. Lieber, Assistant U.S.Attorneys.

    Before: GINSBURG, TATEL and GRIFFITH, Circuit Judges.

    Opinion for the Court filed by Circuit Judge GINSBURG.

    I. Background 3II. Analysis: Joint Issues 4

    A. Wiretaps 5B. Traffic Stop 8C. Superseding Indictment 12D. Multiple Conspiracies 13E. Immunity 14

    III. Analysis: Evidence Obtained from GPS Device 15A. Was Use of GPS a Search? 16

    1. Knotts is not controlling 172. Were Joness locations exposed to the public? 21

    a. Actually exposed? 22(i). Precedent 23(ii). Application 26

    b. Constructively exposed? 26(i). Precedent 27(ii). Application 28

    3. Was Joness expectation of privacy reasonable? 314. Visual surveillance distinguished 34

    B. Was the Search Reasonable Nonetheless? 38C. Was the Error Harmless? 39

    IV. Conclusion 41GINSBURG, Circuit Judge: The appellants, Antoine Jones

    and Lawrence Maynard, appeal their convictions after a jointtrial for conspiracy to distribute and to possess with intent to

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    distribute five kilograms or more of cocaine and 50 grams ormore of cocaine base, in violation of 21 U.S.C. 841 and846. Maynard also challenges the sentence imposed by thedistrict court. Because the appellants convictions arise fromthe same underlying facts and they make several overlappingarguments, we consolidated their appeals. For the reasonsthat follow, we reverse Joness and affirm Maynardsconvictions.

    I. Background

    Jones owned and Maynard managed the Levelsnightclub in the District of Columbia. In 2004 an FBI-Metropolitan Police Department Safe Streets Task Forcebegan investigating the two for narcotics violations. Theinvestigation culminated in searches and arrests on October24, 2005. We discuss that investigation and the drugdistribution operation it uncovered in greater detail whererelevant to the appellants arguments on appeal.

    On October 25 Jones and several alleged co-conspirators

    were charged with, among other things, conspiracy todistribute and to possess with intent to distribute cocaine andcocaine base. Maynard, who was added as a defendant insuperseding indictments filed in March and June 2006, pledguilty in June 2006.

    In October 2006 Jones and a number of his co-defendantswent to trial. The jury acquitted the co-defendants on allcounts but one; it could not reach a verdict on the remainingcount, which was eventually dismissed. The jury acquittedJones on a number of counts but could not reach a verdict on

    the conspiracy charge, as to which the court declared amistrial. Soon thereafter the district court allowed Maynardto withdraw his guilty plea.

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    In March 2007 the Government filed another supersedingindictment charging Jones, Maynard, and a few co-defendantswith a single count of conspiracy to distribute and to possesswith intent to distribute five or more kilograms of cocaine and50 or more grams of cocaine base. A joint trial of Jones andMaynard began in November 2007 and ended in January2008, when the jury found them both guilty.

    II. Analysis: Joint Issues

    Jones and Maynard jointly argue the district court erredin (1) admitting evidence gleaned from wiretaps of theirphones, (2) admitting evidence arising from a search incidentto a traffic stop, (3) denying their motion to dismiss theindictment as invalid because it was handed down by a grandjury that had expired, (4) declining to instruct the jury on theirtheory that the evidence at trial suggested multipleconspiracies, and (5) declining to grant immunity to severaldefense witnesses who invoked the Fifth Amendment to theConstitution of the United States and refused to testify. Jonesalso argues the court erred in admitting evidence acquired bythe warrantless use of a Global Positioning System (GPS)device to track his movements continuously for a month.

    *

    After concluding none of the joint issues warrants reversal,we turn to Joness individual argument.

    * Maynard waves at one individual argument, to wit, that thedistrict court erred in using acquitted conduct to calculate hisguideline range but, in the same sentence, concedes his argumentis foreclosed by precedent, e.g., United States v. Dorcely, 454F.3d 366 (D.C. Cir. 2006) (district courts consideration of prior

    acquitted conduct did not violate the Fifth or Sixth Amendments tothe Constitution of the United States). He nonetheless raises thisissue to preserve his argument in anticipation of future changes inthe law and/or en banc review. So be it.

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    A. Wiretaps

    Before their first trial Jones and his co-defendants movedto suppress evidence taken from wiretaps on Joness andMaynards phones. The police had warrants for the wiretaps,but the defendants argued the issuing court abused itsdiscretion in approving the warrants because the applicationsfor the warrants did not satisfy the so-called necessityrequirement, see 18 U.S.C. 2518(3)(c) (normalinvestigative procedures have been tried and have failed orreasonably appear to be unlikely to succeed if tried or to betoo dangerous); see also,e.g., United States v. Becton, 601F.3d 588, 596 (D.C. Cir. 2010). They also moved for ahearing, pursuant to Franks v. Delaware, 438 U.S. 154(1978), into the credibility of one of the affidavits offered insupport of the warrant. The district court denied bothmotions. 451 F. Supp. 2d 71, 7879, 8183 (2006). Beforehis second trial Jones moved the court to reconsider bothmotions; Maynard adopted Joness motions and made anadditional argument for a Franks hearing. The district court

    held Joness motion for reconsideration added nothing newand denied it for the reasons the court had given before thefirst trial. 511 F. Supp. 2d 74, 77 (2007). The court thendenied Maynards separate motion for a Franks hearing. Id.at 78. The appellants appeal the district courts denial of theirmotions to suppress and for a Franks hearing.

    As for their motions to suppress, the district court heldthe applications for the warrants amply satisfie[d] thenecessity requirement because they recounted the ordinaryinvestigative procedures that had been tried and explained

    why wiretapping was necessary in order to ascertain theextent and structure of the conspiracy. 451 F. Supp. 2d at83. We review the courts necessity determination for

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    abuse of discretion. United States v. Sobamowo, 892 F.2d 90,93 (D.C. Cir. 1989).

    The appellants do not directly challenge the reasoning ofthe district court; rather they suggest sources of information towhich the police hypothetically might have turned in lieu ofthe wiretaps, to wit, cooperating informants, controlled buys,and further video surveillance. At best, the appellants suggestinvestigative techniques that might have provided some of theevidence needed, but they give us no reason to doubt thedistrict courts conclusion that [h]aving engaged in anadequate range of investigative endeavors, the governmentproperly sought wiretap permission and was not required toenumerate every technique or opportunity missed oroverlooked. 451 F. Supp. 2d at 82 (quoting Sobamowo, 892F.2d at 93).

    The appellants also requested a hearing into thecredibility of the affidavit submitted by Special Agent Yantain support of the wiretap warrants. An affidavit offered insupport of a search warrant enjoys a presumption of

    validity,Franks, 438 U.S. at 171, but

    where the defendant makes a substantial preliminaryshowing that a false statement knowingly andintentionally, or with reckless disregard for the truth, wasincluded by the affiant in the warrant affidavit, and if theallegedly false statement is necessary to the finding ofprobable cause, the Fourth Amendment requires that ahearing be held at the defendants request.

    Id. at15556. The substantial showing required under Franks

    must be more than conclusory and accompanied by anoffer of proof. United States v. Gatson, 357 F.3d 77, 80(D.C. Cir. 2004) (quoting Franks).

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    The appellants argued Yanta intentionally or at leastrecklessly both mischaracterized certain evidence and omittedany mention in her affidavit of Holden, an informant whomthe appellants think might have assisted the investigation.The district court denied the motion, holding the appellantshad satisfied neither the substantia