14

‐ 3739

‐ cr (L)

United States v. Babilonia

U NITED S TATES C OURT OF A PPEALS

FOR THE S ECOND C IRCUIT

August Term 2016

(Argued: September 29, 2016 Decided: April 17, 2017)

Docket Nos. 14

‐ 3739

‐ cr, 15

‐ 651

‐ cr, 15

‐ 1057

‐ cr

U NITED S TATES OF A MERICA

,

Appellee,

v.

A ISHA B ABILONIA

, R UBEN D AVIS

, AKA Bloddy Ruben, AKA Fat Man,

AKA Fat Boy, R OGER K EY

, AKA Sealed Defendant 1, AKA Luchie,

Defendants

‐ Appellants,

R UBEN F ERNANDEZ

, AKA Pops, R ICHARD P ALMER

, AKA P.O., AKA P.O.P., P EDRO

M ARQUEZ

, AKA Burns, AKA Bern, A NDREA I SAROON

, AKA Chaz, D ENNIS

F REDERICKS

, AKA Ice, C LAYTON M OLLETTE

, AKA Killer, AKA Clay, S TEVEN

H ERBERT

, AKA Atta, S HUNDU D AVIS

, AKA Davis Shundu, J AMES M ARTIN

, D EXTER

E RBY

, AKA Addi, AKA Dida, Y OUSSOUF D IOMADE

, M OUSTAPHA G UEYE

,

K HALILAH M ATTOCKS

, AKA Lils, J OSE C APRIATA

, G EORGE D AVIS

, AKA Chee Chee,

K EITH P URVIS

, AKA Kiz,

Defendants. *

* The Clerk of Court is respectfully directed to amend the official caption to

conform to the above.O N A PPEAL FROM THE U NITED S TATES D ISTRICT C OURT

FOR THE S OUTHERN D ISTRICT OF N EW Y ORK

Before:

C HIN and C ARNEY

, Circuit Judges

, and C OGAN

, District Judge

. *

Appeal from a judgment of the United States District Court for the

Southern District of New York (Stein, J. ) convicting defendant

‐ appellant Roger

Key, after a jury trial, of charges relating to drug trafficking and murder

‐ for

‐ hire.

Key appeals his convictions on several grounds, including the sufficiency of the

evidence as to the pecuniary value element of conspiracy to commit murder

‐ for

‐

hire and the propriety of admitting evidence from warrantless searches of his car

and apartment.

A FFIRMED

.

M ARGARET G ARNETT

, Assistant United States

Attorney (Abigail Kurland, Assistant

United States Attorney, on the brief ), for Joon

H. Kim, Acting United States Attorney for

* Judge Brian M. Cogan of the United States District Court for the Eastern

District of New York, sitting by designation.3 the Southern District of New York, New

York, New York, for Appellee

.

R OBERT C ALIENDO (Marc Fernich, on the brief ),

Law Office of Marc Fernich, New York,

New York, for Defendant

‐ Appellant Roger

Key.

C HIN

, Circuit Judge :

Defendant

‐ appellant Roger Key appeals from a judgment of the

district court (Stein, J. ) convicting him of, inter alia

, conspiracy to commit

murder

‐ for

‐ hire and several drug

‐ and firearm

‐ related offenses. Key principally

challenges the sufficiency of the evidence supporting his conviction for

participating in the murder

‐ for

‐ hire conspiracy targeting Terry Harrison and the

admission at trial of evidence seized during an August 6, 2012 car stop and

search (the ʺ Car Stop ʺ ) and a September 19, 2012 search of Key ʹ s apartment (the

ʺ Apartment Search ʺ ). Because we conclude that the evidence offered at trial to

prove the pecuniary value element of Key ʹ s conviction for conspiracy to commit

murder

‐ for

‐ hire was sufficient to support the guilty verdict and that the4 challenged searches and seizures did not violate the Fourth Amendment, we

affirm the judgment of the district court. 1

BACKGROUND

I. The Facts

Key ʹ s appeal relates to charges arising out of his involvement in a

Bronx

‐ and Manhattan

‐ based drug trafficking operation and the murder

‐ for

‐ hire

plots targeting Terry Harrison, a rival drug dealer, and Matthew Allen, the

abusive boyfriend of defendant

‐ appellant Aisha Babilonia. 2 The following facts,

generally undisputed, are summarized from the testimony at the suppression

hearing, the district court ʹ s factual findings following the suppression hearing,

and the transcript of the trial below. With respect to the district court ʹ s factual

findings, we review for clear error. United States v. Hussain

, 835 F.3d 307, 313 (2d

Cir. 2016). With respect to the evidence presented at trial, we construe the facts

ʺ in the light most favorable to the government, crediting any inferences that the

1 We address in an accompanying summary order filed today the appeals of

Aisha Babilonia and Ruben Davis, Key ʹ s co

‐ defendants.

2 Key appeals his convictions on charges relating to Allen ʹ s murder only

insofar as they were the product of evidence seized during the Car Stop and Apartment

Search. Accordingly, the details of the plan to murder Allen are not recounted.5 jury might have drawn in its favor. ʺ United States v. Rosemond

, 841 F.3d 95, 99

‐

100 (2d Cir. 2016).

A. Background

In 2010, Key was released from prison after serving several years on

state manslaughter and federal narcotics convictions. Upon his release, and until

his arrest in connection with the instant case in September 2012, Key distributed

millions of dollars ʹ worth of cocaine to drug organizations in the Bronx and

upper Manhattan. One of Key ʹ s biggest customers was defendant

‐ appellant

Ruben Davis, who led a Harlem

‐ based drug trafficking organization. Key ʹ s

distribution operation used multiple stash houses around the Bronx and upper

Manhattan and guns to protect their territory and attack rival dealers. Key also

oversaw a group of young men who sold crack cocaine for him around the

apartment building located at 321 East 153rd Street ( ʺ 321 ʺ ).

B. The Murder of Terry Harrison

Terry Harrison, also known as ʺ T

‐ Money, ʺ was another Bronx

‐ based

drug dealer and a rival of Key. Key and his associates were involved in an

ongoing, violent dispute with Harrison and a local street gang, ʺ GFC, ʺ that sold

drugs for him.6 In the summer of 2010, Matthew Davis ( ʺ Matt ʺ ), an associate of Key,

approached Kevin Wilson about committing a murder. 3 Wilson and Matt knew

each other, and Wilson was aware that Matt had recently returned home from

prison. While Wilson was leaving his child ʹ s mother ʹ s house, a minivan pulled

up, with Matt inside. Matt told Wilson to get into the van. Wilson did so; inside

were Matt, the driver, and one or two people in the back.

After exchanging pleasantries, Matt told Wilson that he needed

Wilson to ʺ dress someone up ʺ for him. Tr. 907. Matt explained that he needed

Wilson to kill someone for him, ʺ like now. ʺ Tr. 907. One of the passengers in the

back put a gun to Wilson ʹ s head, while Matt instructed Wilson that ʺ you gonna

do it or we gonna kill you. ʺ Tr. 907. Wilson agreed to commit the murder. 4 He

gave Matt his phone number, and Matt said he would call Wilson. Wilson did

not call the police or ask anyone else for help after his conversation with Matt.

Matt called Wilson the next day and then went to meet him. They

took a cab to 321, which Matt referred to as ʺ Headquarters. ʺ There, Matt

introduced Wilson to Kyle Harris, or ʺ Beans, ʺ another individual who sold drugs

3 Matthew Davis is not related to defendant

‐ appellant Ruben Davis.

4 Despite the threat, Wilson testified that he agreed to commit the murder

voluntarily.7 for Key. After Beans left, Matt introduced Wilson to Keith Burges, or ʺ Cuzzo, ʺ

and the three of them walked into the lobby of 321. Beans returned to the lobby

and retrieved two handguns from a staircase. He banged on a mailbox with his

fist to open it and put the guns inside.

Wilson spent three or four days with Matt and his associates at 321.

During that time, Matt told Wilson that there had been a change of plans; Cuzzo

would be the primary shooter, and Wilson would be the backup. Wilson

understood this to mean he would be responsible for shooting at anyone who

shot at Cuzzo. At no point prior to the murder did Wilson know the target ʹ s

identity; he learned Harrison ʹ s name after he was arrested.

Wilson never asked Matt why Matt wanted him to kill someone,

who the target was, or what he would get in exchange. Wilson hoped to get

money out of his agreement to kill Harrison, but no one discussed a specific

dollar amount for Wilson ʹ s compensation prior to the murder. He hoped to

become part of a team, with ʺ people by [his] side. ʺ Tr. 919. He further testified

that ʺ Matt was basically telling me they was going to hold me down, that I was

going to be good. ʺ Tr. 918. Wilson understood this to mean that Matt and his8 group would ʺ hold me down, give me money, look out for me, watch over me, ʺ

and that this meant he would be ʺ accepted with them. ʺ Tr. 918.

A few days prior to the murder, Beans gave Wilson and Cuzzo the

guns from the mailbox in the lobby of 321. Wilson received a silver .380 caliber

gun and Cuzzo a silver revolver. Wilson and Cuzzo left the building and walked

through the housing projects on Courtlandt Avenue. Wilson was carrying the

gun in his waistband. Wilson did not know whom they were looking for, so he

just followed Cuzzo. He understood that they were looking for the target of the

murder plot. As they walked, a police car drove down the opposite side of the

block. The car stopped and the officers jumped out. Wilson and Cuzzo, still

carrying the guns from Beans, ran as the officers chased them. At some point,

Wilson jumped over a gate and the gun fell to the ground. He continued to run.

He had lost Cuzzo at this point. After waiting a couple of minutes, he returned

to Headquarters and told the group, which included Joseph Tarean, or ʺ T, ʺ and a

man known as ʺ E

‐ Wop, ʺ that he had dropped the gun.

Matt called Wilson and told him that he would have to pay for the

gun if he did not find it. Wilson left the building and ran into T, who told him

that the area was clear of police activity. Wilson retraced his steps and found the9 gun buried in the grass. He picked it up and returned to 321, where Matt, T,

Beans, and others were hanging out. Key arrived and began talking to Matt, who

then introduced Key to Wilson.

Two or three days later, Wilson got a phone call from Matt, asking

him to come up to Courtlandt Avenue. Wilson called Matt once he had arrived,

and Matt told Wilson he was across the street in a van. Wilson got into the van.

Later, Key pulled up in a black Jeep. Key and Matt began talking through their

rolled

‐ down windows. Wilson could not understand what they were saying and

thought that they were speaking in code. They spoke for a few minutes.

Wilson left the van to go to the store. When Wilson got back to the

van, Matt drove him around the block and told Wilson to do what he had been

asked to do initially. Wilson understood this to mean that Matt was asking him

kill someone. Wilson agreed. Matt handed Wilson a silver revolver from a

concealed compartment in the roof of the van. Matt described the target to

Wilson as a black man with braids and let Wilson out on the sidewalk. Wilson

looked in the barbershop where Matt told him the target would be but did not

see anyone other than the barbers. Matt called Wilson numerous times to see10 what was going on. During one of these calls, Wilson realized that he was at the

wrong barbershop and proceeded up the block to another barbershop.

Matt provided Wilson with additional details regarding Harrison ʹ s

appearance, and Wilson spotted Harrison walking towards him. Wilson ducked

into a store, and Harrison and his friends entered the store behind Wilson.

Wilson left the store and took another call from Matt, who expressed frustration

that the shooting had not yet occurred. Matt told Wilson to ʺ do what [he] got to

do ʺ and then run around the corner to Third Avenue, where Matt would pick

him up in the minivan. Tr. 941. Wilson hid between two cars and moved the

gun from his waistband to the front pocket of his sweatshirt. He then walked out

from behind the cars towards Harrison and shot him three times. Harrison later

died from the gunshot wounds.

Wilson turned and ran to Third Avenue where he jumped into the

van with Matt, Beans, and another individual. Wilson gave his sweatshirt and

the gun to Beans and changed into another shirt that Matt gave him. Wilson told

Matt he was not sure if he had killed Harrison. Matt let Wilson out of the

minivan and told him to shower and relax.11 Later that night, Matt called Wilson and told him it was ʺ pay day. ʺ

Tr. 946. Wilson believed that he was going to get paid for the murder. Wilson

went to Matt ʹ s house, where Matt was standing outside the van with Beans,

Cuzzo, and Jamal Brooks. They all got into the van and drove to Manhattan.

Once they reached their destination, Wilson and Matt got out and stopped at a

grocery store. Key was standing across the street from the store, and they

crossed over to talk to him. Key thanked Wilson for ʺ handling that situation for

him, ʺ which Wilson understood to mean shooting Harrison. Tr. 948. Key then

handed Wilson $1,000 in cash. After paying Wilson, Key appeared to be in high

spirits and told Wilson ʺ that ʹ s how you get money. ʺ Tr. 949.

C. The Car Stop

Drug Enforcement Administration ( ʺ DEA ʺ ) Special Agent John

Livanis, assigned to the New York Field Division Strike Force, was involved in

an ongoing investigation of Key that began in June 2012. Based on information

provided by a confidential informant, Livanis and his team began conducting

surveillance of Key. 5

5 Livanis and his team did not know Key ʹ s identity at the time he first

became a target of the investigation. After the NYPD traced a license plate number of a

Nissan Maxima driven by Key (FBZ 3330), which had been provided to Livanis by a

confidential informant, Livanis learned that Key was being investigated for drug

‐12 In June 2012, Livanis observed a man, later identified as Key, leave a

store with a large shopping bag, after the informant saw the man purchase a kilo

press, a device used to package large quantities of drugs. On August 3, 2012,

three days before the Car Stop, Livanis observed the same man leave 3427

Bruckner Boulevard, an apartment building in the Bronx, with a small gift bag

and head to a body shop in Mount Vernon, New York, in the Nissan Maxima

previously identified by the informant. The man brought the gift bag, which

Livanis believed to contain either drugs or money, into the body shop and left

without it.

On August 6, 2012, the day of the Car Stop, Livanis, New York State

Police Senior Investigator Frederick Cabbell, and a team of agents resumed

surveillance, looking for the Maxima. The agents saw a man park a Toyota

Sienna, which had no front license plate, across from 3427 Bruckner Boulevard.

Livanis recognized the man from his previous surveillance operations but did

not convey his suspicion to anyone else on the team. The man got out of the

Sienna and looked up and down the block repeatedly, even though there was no

car traffic on the street. Cabbell found the man ʹ s behavior ʺ suspicious, ʺ App. 251,

related activity and murder

‐ for

‐ hire, and that Key was connected to Davis, who was

also the subject of an ongoing narcotics investigation.13 and based on his experience, he believed that the man was checking for police or

other observers in the area.

After crossing the street, the man entered the building. He

reappeared within minutes, holding a green plastic bag with a weighted, brick

‐

shaped object inside. He walked back across the street quickly and got into the

driver ʹ s seat of the Sienna. Based on their observations and experience, both

Livanis and Cabbell suspected that the bag contained either drugs or drug

proceeds.

Cabbell then instructed the team, comprised of agents in several

unmarked vehicles, to follow the Sienna. 6 Livanis stayed back at the apartment

building and listened to the communications on his radio. Cabbell also followed

the Sienna and saw the driver use a cell phone. Cabbell instructed the team to

make a traffic stop. Special Agents Kuzman and Lorens turned on their lights

and sirens and, using their PA system, instructed the Sienna to pull over. The car

slowed down briefly but did not stop, and eventually took off onto the highway.

Kuzman repeatedly called out for the car to pull over while it weaved in and out

of traffic on the northbound Bruckner Expressway at high speeds. The driver of

6 Although the district court found that only Livanis instructed the team to

pursue the Sienna, both Livanis and Cabbell testified that they did so.14 the Sienna remained on his phone, and Kuzman informed the team that the

driver was failing to yield. The surveillance team continued in pursuit for five to

eight minutes. Finally, the car took the Stillwell Avenue exit off the Expressway

and came to a stop in a nearby intersection.

Cabbell drew his weapon and ran towards the Sienna screaming

ʺ police ʺ with his badge visible; other members of the team did the same.

Kuzman got out of his car and asked the driver to show his hands, but the driver

continued to use his cell phone. Cabbell holstered his weapon and removed the

driver from the vehicle. The cell phone was still inside the car.

Cabbell saw the green plastic bag between the two front seats. The

bag was wrapped tightly such that the rectangular shape of its contents was

apparent. Cabbell removed and opened the bag to find $10,000 in cash bundled

with rubber bands inside.

The driver was handcuffed and taken to the 45th Precinct. Cabbell

stayed behind with the car and moved it out of traffic. He then conducted a

ʺ cursory search ʺ of the car. App. 243. Cabbell found additional cell phones, New

York license plate FBZ 3330, receipts for several additional cell phones,

miscellaneous papers, and two Pelican cases with instructions for a GPS device.15 At that time, he recognized the license plate from his investigation as belonging

to Key. In an effort not to raise Key ʹ s suspicions about the broader investigation,

the agents decided not to proceed with prosecution. They also opted not to seize

any evidence from the car other than the green bag. Cabbell returned to the

precinct and told Key that his money had been seized, but that he would get his

car keys back.

D. The Apartment Search

On the morning of September 19, 2012, Key was arrested by Federal

Bureau of Investigations ( ʺ FBI ʺ ) Agent Brendan Kenney and a team of 12 to 15

law enforcement personnel in an apartment at 1604 Metropolitan Avenue in the

Bronx. Kenney and another agent knocked on the apartment door and

announced themselves. Key answered the door in boxer shorts and an

undershirt, holding a cell phone. Kenney and another agent took the cell phone

from Key, pulled him into the hallway, and handcuffed him. After the agents

made sure no one else was in the apartment, they brought Key back inside to get

dressed.16 When Kenney brought Key into the living room, Kenney noticed ʺ a

number of cell phones ʺ on the table. App. 245. 7 At that time, the FBI was

investigating Key for narcotics trafficking and a murder

‐ for

‐ hire conspiracy that

involved cell phones. Kenney was also aware of a wiretap investigation into

Key ʹ s drug trafficking activities that involved cell phones. Kenney asked Key if

there were firearms or drugs in the apartment; Key said that there were not and

gave Kenney verbal consent to search the apartment for firearms and drugs. At

no point did Kenney ask Key to complete a consent form.

Kenney went into the bedroom to get clothes for Key. He picked up

a pair of jeans and checked them for contraband. He found car keys for a Toyota

and a Bentley, as well as cash in the jeans ʹ pockets. Kenney knew from the

ongoing investigation that Key operated a Toyota Sienna and a Bentley. As the

agents went through the apartment, they also recovered cell phones, an iPad,

and an address book. The search lasted approximately 15 minutes. Key was

seated in the living room for the duration of the search and did not ask the

agents to stop at any point.

7 At oral argument, defense counsel and the government agreed that four or

five cell phones were recovered.17 After the search was completed, Kenney and an NYPD detective

transported Key to the FBI ʹ s office at 26 Federal Plaza in Manhattan. Kenney

provided Key with a property receipt for the items that were seized.

II. The Proceedings Below

In a superseding indictment filed February 25, 2014, Key was

charged with narcotics conspiracy in violation of 21 U.S.C. §§ 841(a)(1) and 846

(Count One); use, carrying, and possession of firearms in connection with the

narcotics conspiracy in violation of 18 U.S.C. §§ 924 and 2 (Count Two);

conspiracy to commit murder

‐ for

‐ hire and attempted murder

‐ for

‐ hire of

Matthew Allen in violation of 18 U.S.C. §§ 1958 and 2 (Counts Three and Four);

use, carrying, and possessing of a firearm in connection with the Allen murder

‐

for

‐ hire conspiracy in violation of 18 U.S.C. §§ 924 and 2 (Count Five); conspiracy

to commit murder

‐ for

‐ hire and murder

‐ for

‐ hire of Terry Harrison in violation of

18 U.S.C. §§ 1958 and 2 (Counts Six and Seven); murder in connection with the

narcotics conspiracy in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2

(Count Eight); and aiding and abetting the use of a firearm to commit murder in

connection with the Harrison murder

‐ for

‐ hire charges in violation of 18 U.S.C.

§§ 924(j)(1) and 2 (Count Nine).18 Before trial, Key moved to suppress physical evidence recovered

from the Car Stop and the Apartment Search. After a two

‐ day hearing, the

district court denied Key ʹ s suppression motions, ruling from the bench. The

court credited the testimony of the law enforcement officers and denied

suppression, ruling that (1) the Car Stop was supported by probable cause to

believe that a crime had occurred, (2) the automobile exception justified the

search of the car for the green plastic bag, and (3) the evidence, not ultimately

seized, from the rear of the car would have been discovered in a permissible

inventory search. Regarding the Apartment Search, the court ruled that, based

on his training, experience, and knowledge of the investigation, Kenney had

probable cause to believe that the electronic items and address book were

evidence of criminal activity and thus was justified in seizing them under the

plain view doctrine.

Key ʹ s trial began on March 17, 2014 and lasted approximately two

weeks. The government called approximately 25 witnesses, including Wilson,

the man who killed Harrison, and introduced wiretap records and physical

records, including narcotics paraphernalia, a firearm, a photograph of items

seized during the Car Stop, cell site records, phone records, Department of Motor19 Vehicles records, and bank records. The district court denied Key ʹ s motions for a

directed verdict at the close of the government ʹ s case and at the end of the trial.

On April 2, 2014, the jury found Key guilty on Counts One through

Six

‐‐ the drug trafficking charges, the Allen murder

‐ for

‐ hire charges, and

conspiracy to commit the Harrison murder

‐ for

‐ hire

‐‐ and not guilty on Counts

Seven through Nine

‐‐ the substantive murder, murder

‐ for

‐ hire, and firearm

charges relating to the Harrison murder.

On March 27, 2015, Judge Stein sentenced Key principally to life

imprisonment on Count One, a concurrent ten years ʹ imprisonment on Counts

Three, Four, and Six, a consecutive five years ʹ imprisonment on Count Two, and

a consecutive 25 years ʹ imprisonment on Count Five, for a total sentence of life

imprisonment plus 30 years.

This appeal followed.

DISCUSSION

Two issues are presented: (1) the sufficiency of the evidence as to

the pecuniary value element of murder

‐ for

‐ hire with respect to Count Six, and (2)20 the legality of the Car Stop and the Apartment Search. 8 We address each issue in

turn.

I. The Su ffi ciency of the Evidence

In considering the sufficiency of the evidence on appeal of a

conviction, we ʺ view the evidence in the light most favorable to the government,

crediting every inference that could have been drawn in the government ʹ s favor,

and deferring to the jury ʹ s assessment of witness credibility and its assessment of

the weight of the evidence. ʺ Rosemond

, 841 F.3d at 113 (quoting United States v.

Coplan

, 703 F.3d 46, 62 (2d Cir. 2012)). We must affirm if ʺ any rational trier of fact

could have found the essential elements of the crime beyond a reasonable

doubt. ʺ Id. (quoting United States v. Vernace

, 811 F.3d 609, 615 (2d Cir. 2016)).

A. Applicable Law

The murder

‐ for

‐ hire statute prohibits traveling in interstate or

foreign commerce, or using a facility of interstate commerce, with intent that a

murder ʺ take place in exchange for the provision of, or a promise to pay,

anything of pecuniary value. ʺ United States v. Frampton, 382 F.3d 213, 218 (2d Cir.

2004). Section 1958 of Title 18 of the United States Code provides:

8 Key also argues that his drug

‐ related convictions were impermissibly

tainted by prejudicial spillover from the murder

‐ for

‐ hire convictions. In light of our

affirmance of the murder

‐ for

‐ hire convictions, this argument is foreclosed.21 Whoever travels in or causes another

. . . to travel in interstate or

foreign commerce, or uses or causes another

. . . to use the mail or

any facility of interstate or foreign commerce, with intent that a

murder be committed in violation of the laws of any State or the

United States as consideration for the receipt of, or as consideration

for a promise or agreement to pay, anything of pecuniary value, or

who conspires to do so, shall be

. . . imprisoned for not more than

ten years

. . . ; and if personal injury results, shall be

. . . imprisoned

for not more than twenty years

. . . ; and if death results, shall be

punished by death or life imprisonment

. . . .

18 U.S.C. § 1958(a).

As the wording of the statute makes clear, there must be the intent

that a murder be committed as ʺ consideration ʺ for the payment of, or promise or

agreement to pay, something of ʺ pecuniary value. ʺ Id. We have held that ʺ there

must be a ʹ quid

‐ pro

‐ quo (or at least the promise of such) between the parties to

the transaction. ʹʺ United States v. Hardwick

, 523 F.3d 94, 100 (2d Cir. 2008)

(quoting United States v. Hernandez, 141 F.3d 1042, 1057 (11th Cir. 1998)). Not all

intended exchanges, however, satisfy the statute ʹ s ʺ pecuniary value ʺ

requirement. The mere fact that the intended exchange between the solicitor of

the murder and the solicited murderer ʺ could inure to the economic benefit of the

latter is insufficient. ʺ Frampton

, 382 F.3d at 219. For the exchange to be

ʺ pecuniary, ʺ the intended consideration must be ʺ something the ʹ primary

significance ʹ of which lay in its ʹ economic advantage. ʹʺ Id. (quoting 18 U.S.C.22 § 1958(b)(1)). Accordingly, we have held that the promise of a favor is

insufficient to sustain a murder

‐ for

‐ hire conviction under § 1958 absent

ʺ evidence suggesting that either party had an understanding as to the form that

it would actually take. ʺ Id. 9

To sustain a conviction for conspiracy, the government must prove

that the defendant ʺ knowingly joined and participated in [the conspiracy] ʺ and

ʺ possessed the specific intent to commit the offense that was the object of the

conspiracy. ʺ United States v. Valle

, 807 F.3d 508, 515

‐ 16 (2d Cir. 2015). The

government need not prove that the conspirators ʺ have agreed on the details of

the conspiracy, so long as they agreed on the essential nature of the plan. ʺ United

States v. Geibel

, 369 F.3d 682, 689 (2d Cir. 2004). ʺ [P]roof of a tacit understanding

will suffice. ʺ United States v. Rea

, 958 F.2d 1206, 1214 (2d Cir. 1992). A

defendant ʹ s participation in a conspiracy can be proven by circumstantial

evidence. See United States v. Aleskerova

, 300 F.3d 286, 292

‐ 93 (2d Cir. 2002).

9 A number of circuits have held that ʺ § 1958 does not require the existence

of an actual murder

‐ for

‐ hire agreement. ʺ United States v. Dvorkin

, 799 F.3d 867, 875 (7th

Cir. 2015) (collecting cases). The Seventh Circuit has noted that our circuit ʹ s precedents,

specifically Hardwick and Frampton

, contain language that ʺ could be construed as

inconsistent ʺ with that position. Id. at 877 n.21 (citing Hardwick

, 523 F.3d at 99, and

Frampton

, 382 F.3d at 217). We need not address this issue, as here there was sufficient

evidence to show that all three parties to the murder

‐ for

‐ hire scheme had a mutual

understanding that Wilson would be paid for his work.23 B. Application

The question is whether a reasonable jury could have found that Key

and others agreed to commission Harrison ʹ s murder in exchange for the

provision of, or a promise to pay, something of pecuniary value. We answer in

the affirmative and uphold Key ʹ s conviction.

Key argues that Wilson ʹ s vague testimony regarding what he was to

receive in exchange for Harrison ʹ s murder shows only that Wilson was expecting

an unspecified favor, which cannot support a finding of pecuniary value. In

Frampton

, the only evidence of consideration for the agreement to commit

murder was a co

‐ conspirator ʹ s testimony that the shooter would receive an

unspecified ʺ favor, ʺ later clarified as ʺ [a]nything he need. ʺ Frampton

, 382 F.3d at

218. We rejected the government ʹ s argument that the jury could infer that the

ʺ favor ʺ carried inherent economic value and, thus, satisfied the consideration

requirement. Id. at 218

‐ 19.

Here, unlike in Frampton

, the record contains evidence from which

the jury could find that the parties had an understanding that Wilson would be

paid to murder Harrison. Cf. id. at 219. Wilson ʹ s descriptions of his interactions

with Matt make clear that more than an undefined favor was promised. Wilson24 and Matt discussed the shooting over the course of several days, including what

Wilson would receive in return for the murder. Although he was not directly

involved in the conversations, Key was present, and a reasonable jury could have

inferred that Matt was receiving instructions from Key. Unlike in Frampton

,

where there was no indication that either party believed that money would be

exchanged, Wilson testified that he understood Davis ʹ s representation that he

would ʺ hold [Wilson] down ʺ to mean, among other things, that Matt and Key ʹ s

other associates would take care of Wilson financially. Indeed, Wilson testified

that he understood the group would ʺ hold me down, give me money

, look out for

me. ʺ Tr. 918 (emphasis added).

Key ʹ s conduct after the murder also sheds light on the arrangement

between Matt and Wilson. Shortly after the shooting, Matt told Wilson that it

was ʺ pay day. ʺ Matt then brought him to Key, who handed Wilson $1,000 and

thanked him for ʺ handling that situation. ʺ Tr. 946, 948. Hence, Matt, Wilson,

and Key all acted as if they understood that Wilson would be paid for the deed.

For the substantive murder

‐ for

‐ hire crime, we assess whether the

pecuniary value element was met when the agreement was made. Frampton

, 382

F.3d at 219. Here, Key and his co

‐ conspirators ʹ post

‐ agreement course of conduct25 is circumstantial evidence of Key ʹ s specific intent at the time Wilson was hired to

provide monetary compensation for the murder ʹ s completion. In particular, Key

paid Wilson after the murder. See United States v. Anderson

, 747 F.3d 51, 61 (2d

Cir. 2014) ( ʺ Circumstantial evidence may be used to prove specific intent to

commit the object of a conspiracy.

. . . ʺ ). Thus, drawing all inferences in the

government ʹ s favor, a rational jury could conclude that, at the time of the initial

solicitation, Wilson and Matt agreed that the murder would be carried out in

exchange for financial compensation to be provided by Key.

Key contends that the post

‐ murder payment is insufficient to

establish the pecuniary value element, citing, inter alia

, United States v. Chong

, 419

F.3d 1076 (9th Cir. 2005). In Chong

, the Ninth Circuit held that the jury did not

have adequate evidence to find that $100 given to a hitman after a murder

constituted compensation for the murder

‐ for

‐ hire in the absence of an overt

agreement or understanding between the hitman and the defendant (or the

defendant ʹ s co

‐ conspirators). Chong

, 419 F.3d at 1082. At the time of the

agreement, the hitman was aware only that he and other volunteers would be

traveling to Boston from San Francisco and that they would be bringing guns to

complete an unspecified task. Id. at 1083. It was not until the volunteers reached26 Boston that they were told, right before the murder took place, that the job was to

kill someone. Id. The court concluded that the evidence showed only that the

shooter ʺ volunteered for a dangerous assignment and wound up getting some

walking

‐ around money. ʺ Id. On those facts, the Ninth Circuit held that the jury

had insufficient evidence to find that the shooter agreed to travel to Boston to

commit a murder in exchange for something of pecuniary value offered by the

defendant or his co

‐ conspirators. Id. at 1083

‐ 84. 10

Here, Wilson knew exactly what he was being asked to do when he

agreed to assist Matt. The evidence at trial established that Matt discussed with

Wilson what Wilson would receive for assisting with the murder of Harrison,

although it is hard to divine the precise nature of that consideration from only

Wilson ʹ s recollection of their interactions prior to the murder. Nonetheless, a

jury could reasonably find that when Matt told Wilson that he would ʺ be good, ʺ

10 In further support of his argument, Key cites the decision of the district

court (Forrest, J. ) on Matthew Davis ʹ s Rule 29 motion in his criminal case. See United

States v. Davis

, 103 F. Supp. 3d 396 (S.D.N.Y. 2015). In holding that no rational juror

could find that the pecuniary value element was met as to Matt, the district court noted

that ʺ [i]t is

. . . legally insufficient that [Matt] Davis may have held a unilateral belief

that the likely form of compensation was money ʺ without any indication of Wilson ʹ s

understanding. Davis

, 103 F. Supp. 3d at 404. Here, of course, there was a different

record, including evidence of Wilson ʹ s understanding of the bargained

‐ for exchange, as

well as a jury verdict against Key. Accordingly, the disposition of Matt ʹ s case in the

district court carries little weight.27 Matt was promising financial compensation, particularly in light of Wilson ʹ s

post

‐ murder interactions with Matt and Key.

Finally, in addition to his arguments regarding the pecuniary value

element, Key argues that there is no evidence that he knew the murder had been

planned, let alone who would commit the murder or that someone would be

paid for its commission. We are not persuaded. Wilson ʹ s testimony about his

interactions with Matt and the other members of Key ʹ s crew, when considered

with his testimony as a whole, provided a basis for the jury to conclude that Key

not only knowingly participated in the murder

‐ for

‐ hire conspiracy, but also was

the driving force behind the plan. After Matt asked Wilson to commit the

murder, Wilson spent the next few days in the company of Matt, Beans, Cuzzo,

and others. Matt and Beans provided Wilson with guns and instructed him on

the plans for the murder. As Wilson sat in Matt ʹ s minivan just before the

murder, Key pulled up in his car and had a conversation with Matt in a code that

Wilson could not understand. When Wilson was trying to find Harrison, he saw

T and E

‐ Wop positioned as lookouts on the street. After the shooting, Matt and

Beans took Wilson ʹ s clothes and gun from him. Within hours, Matt called Wilson28 to tell him that it was ʺ pay day. ʺ Tr. 946. Then, Wilson, Matt, Beans, Cuzzo, and

Brooks all drove to Manhattan where they met Key, who then paid Wilson.

In addition to the evidence regarding the planning and execution of

Harrison ʹ s murder, the government introduced evidence of Key ʹ s role as a high

‐

level drug supplier and his relationship with Matt and other young men who

acted at his direction. The testimony at trial established that Key supplied large

quantities of cocaine to drug organizations run by co

‐ defendants Ruben Davis

and Jermaine Smalls. Two witnesses testified that Matt sold drugs for Key, and

one witness testified that Matt stored drugs that Key had supplied to Smalls in

his grandmother ʹ s house. One cooperator testified that Key stopped giving Matt

drugs to sell, or ʺ work, ʺ when Key thought that Matt was selling too slowly. Tr.

578. A member of Smalls ʹ s crew testified that Smalls was scared that Key would

retaliate against him through his associates, who Smalls called ʺ wolves, ʺ due to

an outstanding debt. Tr. 572. The jury also heard from a member of Ruben

Davis ʹ s organization, who testified that Key discussed having a mutual associate

killed, stating that he did not tolerate disrespect and had young men who ʺ will

do anything ʺ for him. Tr. 1410.29 The government also presented evidence from which the jury could

infer that Key conspired with others to have Harrison killed because of a

longstanding dispute over drug selling territory. Bernard Folks, who sold drugs

for Harrison, testified that Harrison supplied his crew with guns to protect

themselves from and attack other local gangs who sold in the same territory,

including the crew that sold drugs out of 321. Jiya Canady, who was involved in

the murder

‐ for

‐ hire of Matthew Allen, testified about a conversation with Key,

during which Key told Canady that he had a rivalry with other crews over

territory in the Bronx and had to ʺ lay somebody down. ʺ Tr. 113. Canady further

testified that Key reported that the other drug dealers in the housing projects ʺ fell

in line ʺ and ʺ accepted his

. . . control ʺ after the murder. Tr. 114.

Accordingly, because a rational jury could have inferred that Key

participated in the conspiracy to murder Harrison and specifically intended that

Wilson would be paid in exchange for committing the murder, we conclude that

there was sufficient evidence to satisfy the pecuniary value element of the

murder

‐ for

‐ hire analysis.30 II. The Searches

We review a district court ʹ s ruling on a suppression motion for clear

error as to factual findings, ʺ giving special deference to findings that are based

on determinations of witness credibility, ʺ and de novo as to questions of law.

Hussain

, 835 F.3d at 312

‐ 13 (quoting United States v. Lucky

, 569 F.3d 101, 106 (2d

Cir. 2009)). In so doing, we conclude that Key ʹ s motion was properly denied and

the evidence from the challenged searches was properly admitted.

A. The Car Stop

Key argues that Investigator Cabbell ʹ s warrantless search of his car

was unconstitutional because (1) the search of the passenger cab was not

justifiable either as a search incident to arrest or under the automobile exception,

and (2) the evidence observed in the rear storage area of the car would not have

been acquired lawfully had the unlawful search not occurred.

1. Applicable Law

Warrantless searches are ʺ per se unreasonable under the Fourth

Amendment

‐‐ subject only to a few specifically established and well

‐ delineated

exceptions. ʺ United States v. Navas

, 597 F.3d 492, 497 (2d Cir. 2010) (quoting Katz

v. United States, 389 U.S. 347, 357 (1967)).31 The ʺ automobile exception ʺ permits law enforcement officers to

search without a warrant ʺ a readily mobile vehicle where there is probable cause

to believe that the vehicle contains contraband. ʺ Navas

, 597 F.3d at 497 (citing

Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam)). If the exception

applies, ʺ it justifies the search of every part of the vehicle and its contents that

may conceal the object of the search. ʺ United States v. Ross, 456 U.S. 798, 825

(1982).

ʺ [P]robable cause exists where the facts and circumstances within

. . .

[the officers ʹ ] knowledge and of which they had reasonably trustworthy

information [are] sufficient in themselves to warrant a [person] of reasonable

caution in the belief that evidence of a crime will be found in the place to be

searched. ʺ United States v. Gaskin

, 364 F.3d 438, 456

‐ 57 (2d Cir. 2004) (quoting

Brinegar v. United States

, 338 U.S. 160, 175

‐ 76 (1949)) (internal quotation marks

omitted). Of course, probable cause is a dynamic concept, and we have

recognized that a law enforcement officer ʹ s experience and training may permit

the officer to ʺ discern probable cause from facts and circumstances where a

layman might not. ʺ Id. at 457. Furthermore, under the collective knowledge

doctrine, even if the law enforcement officer actually conducting the search lacks32 the relevant facts to support probable cause, the search may nonetheless be

permissible if the officer acted on the assessment or instructions of other officers

who did have such facts. United States v. Colon

, 250 F.3d 130, 135 (2d Cir. 2001);

see also Hussain

, 835 F.3d at 316 n.8.

In addition, law enforcement officers taking a vehicle into custody

after an arrest may search it and inventory its contents ʺ without need for a search

warrant and without regard to whether there is probable cause to suspect that

the vehicle contains contraband or evidence of criminal conduct. ʺ United States v.

Lopez

, 547 F.3d 364, 369 (2d Cir. 2008). Thus, after a lawful arrest (for example,

after a traffic violation) where a search incident to arrest is not justified, evidence

recovered from an immediately ensuing search may be admissible nevertheless

ʺ if the contents would inevitably have been discovered in a permissible

inventory search. ʺ United States v. Perea

, 986 F.2d 633, 644 (2d Cir. 1993).

2. Application

Here, there was ample evidence for the agents to believe that Key ʹ s

vehicle contained contraband. Cabbell ʹ s testimony, credited by the district court,

established that he was conducting surveillance as part of a larger drug

trafficking investigation when he saw a man emerge from a minivan without a33 front license plate and look up and down the block several times over a period of

minutes, even though there was no street traffic at the time. Cabbell then saw

the man enter an apartment building and return minutes later with a green

plastic bag weighed down by a brick

‐ shaped object, now hurrying back to the

car. At that time, Cabbell suspected that the package in the bag contained drugs

or drug

‐ related proceeds. But there was more.

After Cabbell instructed his team to stop Key ʹ s car, Key failed to pull

over and continued driving at high speeds with the agents in pursuit for five to

eight minutes. Key ʹ s initial efforts to escape surely provided the agents

additional reason to believe that Key had something to hide. We have long

recognized flight as an appropriate factor supporting a finding of probable cause

to search a vehicle after it is stopped. See United States v. Christophe

, 470 F.2d 865,

868

‐ 69 (2d Cir. 1972); see also United States v. Oliver

, 363 F.3d 1061, 1068

‐ 69 (10th

Cir. 2004). The agents could have reasonably concluded that Key was

transporting drugs.

Key also contests the admission of testimony regarding the evidence

observed in the back of his car. We agree with the government that the evidence34 in the back of the car would have been discovered in an inventory search given

Key ʹ s arrest.

As Key acknowledges, the inevitable discovery doctrine requires the

district court to assess, ʺ viewing affairs as they existed at the instant before the

unlawful search occurred, what would have happened had the unlawful search

never occurred. ʺ United States v. Stokes

, 733 F.3d 438, 444 (2d Cir. 2013) (emphasis

omitted) (quoting United States v. Eng, 971 F.2d 854, 861 (2d Cir. 1992)). After

Cabbell recovered the green plastic bag from the front of the car, Key was

handcuffed and transported to the precinct. At that point, Key ʹ s car was still

sitting in the middle of an active roadway. Cabbell then moved the car out of the

line of traffic before conducting a ʺ cursory search ʺ of the rest of the vehicle.

Gov ʹ t App. 232. After Key was under arrest and had been taken away from the

scene, Cabbell was entitled to conduct an inventory search before taking the

vehicle into police custody as part of routine procedure. See Lopez

, 547 F.3d at

369

‐ 70. As a result, discovery of the evidence in the back of the car was

inevitable. Key ʹ s challenge to the evidence seized from the Car Stop fails.35 B. The Apartment Search

Key also argues that the district court erred in concluding that Agent

Kenney was justified during the apartment search in seizing cell phones, an iPad,

and an address book as evidence of possible criminal activity under the plain

view doctrine because any incriminating character of such items cannot be

immediately discerned.

1. Applicable Law

The ʺ plain view ʺ exception to the Fourth Amendment ʹ s warrant

requirement is well

‐ established. United States v. Andino

, 768 F.3d 94, 99 (2d Cir.

2014). Under the plain view doctrine, a law enforcement officer may seize

evidence without a warrant if (1) the officer is ʺ lawfully in a position from which

[the officer] view[s] an object, ʺ (2) the object ʹ s ʺ incriminating character is

immediately apparent, ʺ and (3) the officer has ʺ a lawful right of access to the

object. ʺ Minnesota v. Dickerson

, 508 U.S. 366, 375 (1993). When an officer, during

a justified intrusion, encounters incriminating evidence, ʺ [t]he doctrine serves to

supplement the prior justification

‐‐ whether it be a warrant for another object,

hot pursuit, search incident to lawful arrest, or some other legitimate reason for36 being present unconnected with a search directed against the accused

‐‐ and

permits the warrantless seizure. ʺ Horton v. California

, 496 U.S. 128, 135

‐ 36 (1990).

2. Application

Key does not challenge the officers ʹ right to be present in his

apartment at the time of the challenged seizure or to access the seized objects.

Instead, Key argues that the ubiquity of cell phones and the fact that he was

arrested in his home preclude a finding that the incriminating character of the

phones and tablet was immediately apparent. We disagree.

Research suggests that virtually every adult in the United States

owns a cell phone, ʺ which [is] now such a pervasive and insistent part of daily

life that the proverbial visitor from Mars might conclude [it was] an important

feature of human anatomy. ʺ Riley v. California

, 134 S. Ct. 2473, 2484 (2014); see

generally Mobile Phone Ownership

, Pew Research Center (January 11, 2017),

http://www.pewintern et.org/chart/mobile

‐ phone

‐ ownership/. As Key notes, it is

increasingly common for individuals to own more than one mobile phone: an

employer might require a separate device for security reasons, an individual

might decide to upgrade to a newer model, or a parent might purchase a phone37 for a child. As a result, we are mindful that the presence alone of a cell phone, or

even several cell phones, in a home is not inherently incriminating.

We nevertheless disagree with Key that Kenney had no reason to

believe that the phones in the apartment would provide evidence of criminality,

and we conclude that Kenney was justified in seizing the phones and iPad under

the plain view doctrine. At the time of Key ʹ s arrest, Kenney had been

investigating him for months. The investigation had revealed that the murder

‐

for

‐ hire conspiracies involved the use of multiple cell phones. A separate

wiretap investigation that Kenney was aware of showed that Key and his co

‐

conspirators used cell phones to conduct drug

‐ related activity. Kenney had

analyzed Key ʹ s use of numerous cell phones in connection with his purported

criminal activity. Finally, in Kenney ʹ s experience, he had found that address

books usually contained contact information for associates.

Based on this record, we are not troubled by the agents ʹ warrantless

seizure of Key ʹ s cell phones, iPad, and address book, particularly as the agents

did not search the electronic devices until after a warrant had been obtained.

Seizure of everyday objects in plain view is justified where the officers have

probable cause to believe that the objects contain or constitute evidence. See, e.g.

,38 United States v. $557,933.89, More or Less, in U.S. Funds

, 287 F.3d 66, 89 (2d Cir.

2002) (upholding warrantless seizure of money orders under plain view doctrine

because denominations of money orders supported probable cause that they

were obtained to evade reporting requirements); United States v. Cushnie

, No. 14

CR 119 (PGG), 2014 WL 7447149, at *12 (S.D.N.Y. Dec. 31, 2014) (upholding

warrantless seizure of defendant ʹ s cell phone, keys, and wallet where marshals

had reason to believe they would provide evidence of defendant ʹ s interstate

travel and failure to register as a sex offender); United States v. Delva

, 13 F. Supp.

3d 269, 276 (S.D.N.Y. 2014) ( ʺ Courts have routinely denied motions to suppress

the seizure of cell phones, in the context of narcotics conspiracies, based on

knowledge that the phones may contain contacts and other evidence of a

crime. ʺ ); United States v. Meregildo

, No. 11 CR 576 (WHP), 2012 WL 4378047, at *4

(S.D.N.Y. Sept. 24, 2012) ( ʺ Because law enforcement suspected [defendant ʹ s]

involvement in racketeering and narcotics conspiracies

‐‐ whose members used

cellular phones and social media to facilitate their criminal acts

‐‐ the iPhone and

iPod Touch

. . . were immediately identifiable as evidence of criminal conduct. ʺ );

United States v. Reyes

, No. 3:06CR120 (SRU), 2007 WL 419636, at *6 (D. Conn. Jan.

30, 2007) ( ʺ [T]he cellular telephones plainly fall within the standard. It was39 immediately apparent to [the] trained DEA agent with over ten years of law

enforcement experience, that cellular telephones contain caller logs, text

messages, phone books and other information that would be highly relevant to a

drug prosecution and would be very likely connected with criminal activity. ʺ ).

The district court was entitled to credit Kenney ʹ s testimony, which

established probable cause to believe that the items in question would contain

evidence of Key ʹ s alleged criminal activity. See United States v. Escobar

, 805 F.2d

68, 72 (2d Cir. 1986) ( ʺ [The agent ʹ s] knowledge of the relationship between the

evidence seized and the

. . . conspiracy, gleaned through months of investigation,

gave him probable cause to believe that the [items seized] were evidence of a

crime. ʺ ); United States v. Gamble

, 388 F.3d 74, 77 (2d Cir. 2004) (per curiam). The

district court thus appropriately concluded that the incriminating character of

the items seized was readily apparent to Kenney when he saw them in Key ʹ s

apartment.

Accordingly, we affirm the district court ʹ s decision to deny Key ʹ s

suppression motions and admit testimony regarding the evidence observed

during the Car Stop, as well as evidence seized from the Car Stop and Apartment

Search.40 CONCLUSION

For the reasons stated above, the judgment of the district court is

AFFIRMED

.