444 F.3d 76 (1st Cir. 2006), 05-1477, United States v. Boulanger

Docket Nº:05-1477.
Citation:444 F.3d 76
Party Name:UNITED STATES of America, Appellee, v. Gerard J. BOULANGER, Defendant, Appellant.
Case Date:April 12, 2006
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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444 F.3d 76 (1st Cir. 2006)

UNITED STATES of America, Appellee,

v.

Gerard J. BOULANGER, Defendant, Appellant.

No. 05-1477.

United States Court of Appeals, First Circuit.

April 12, 2006

Heard Feb. 6, 2006.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Paul J. Barbadoro, U.S. District Judge]

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[Copyrighted Material Omitted]

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Jonathan R. Saxe, Assistant Federal Public Defender, was on brief, for appellant.

Mark E. Howard, Assistant United States Attorney, with whom Peter E. Papps, Assistant United States Attorney, and Thomas P. Colantuono, United States Attorney, were on brief, for appellee.

Before BOUDIN, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

Following a four-day trial in the United States District Court for the District of New Hampshire, a jury convicted defendant-appellant Gerard J. Boulanger ("Boulanger") of armed robbery involving a controlled substance, possession with intent to distribute a controlled substance, and being a felon in possession of a firearm. Boulanger now appeals, arguing that the district court erred in denying his motion to suppress, motion to sever, and motion for judgment of acquittal. We affirm.

I.

At approximately 10:00 am on September 21, 2003, a lone male entered the Brooks Pharmacy at 104 Milton Road, East Rochester, New Hampshire. He approached the pharmacist, Susan Lebel,

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jumped over the pharmacy counter, displayed a silver handgun, and demanded Oxycontin. Lebel gave the man several bottles containing 10, 20, 40, 80, and 160 milligrams of Oxycontin. The man requested a bag into which he placed the bottles, then demanded methadone. Lebel gave him bottles containing 5 and 10 milligrams of methadone. The man then left the store. According to a witness, he went around the back of the store, where there are woods and marshland.

The robber was wearing a grey sweatshirt, black pants, white gloves, a San Francisco 49ers hat, and had thermal underwear over his head with eye holes cut out. There was some disagreement as to the man's height and age. At trial, Lebel testified that the man was around 5'6". However, on the day of the robbery, she told an officer at the scene that the man was between 5'3" and 5'4".1 She also told this officer that the man was in his early twenties. Boulanger is 5'7" and is forty-one years old.

Officers responding to the report of the robbery used a K-9 unit to track the robber. The dog picked up a scent behind the store and tracked it to a small pond. However, the dog lost the scent on the other side of the pond. About thirty minutes after the robbery, one of the officers saw Boulanger walking on some railroad tracks about a quarter of a mile behind the pharmacy. Boulanger was barefoot, wearing purple boxers and a t-shirt draped over his head and down his back, and was covered in tattoos. The bottoms of his feet were only slightly dirty. Boulanger told the officer that he was from Maine but was staying with a friend named Wayne Merrit at 145b North Main Street, Rochester, NH. This address was several miles away from where Boulanger was found. Boulanger claimed he had been swimming and also stated that he had a criminal record and did tattooing for a living. The officers brought the K-9 unit to Boulanger, but the dog did not "alert" to him. Boulanger was eventually allowed to leave the scene.

The Rochester Police Department issued a description of the robbery suspect to the media and offered a reward for information leading to the robber's capture. On September 24, 2003, the police received two calls. The callers, George Kish ("Kish") and Michael Norton ("Norton"), met with the police and told them that they had been at Wayne Merrit's apartment the night before and that Norton had purchased Oxycontin from a man named "Jay Bar." Jay Bar had a bag full of Oxycontin and was known to work as a tattoo artist. Norton and Kish also said that they had seen a fake silver pistol in the apartment. Norton agreed to make a controlled buy from Jay Bar, and went to the apartment wearing a wire and carrying $100 in recorded buy money. Norton returned from the residence and gave the police a bag of pills.2

After the buy, the police sought a search warrant for 145 North Main Street. The apartment they wished to search was in a multi-family wood building containing at least four apartments. The door to the apartment had several locks on it, and the police confirmed that there were no children or elderly persons in the apartment.

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The police obtained the warrant but did not seek permission from the issuing judge to conduct a "no-knock" entry, even though they intended to conduct such an entry.3 According to the government, the police did not seek permission to conduct a no-knock entry because the issuing judge had a policy that it was up to the police to determine whether to conduct a no-knock entry and therefore did not issue no-knock warrants. It was established below that this was the actual practice of the judge.

According to the government, the police decided to conduct the no-knock entry for several reasons: (1) Boulanger --who the police believed was using the name "Jay Bar" as an alias --had previous convictions for violent offenses, (2) Boulanger was a suspect in an armed robbery where a gun was used, (3) Norton had told the police he had seen a gun (which he described as fake) in the apartment, 4 and (4) drugs were being sold from the apartment.

The police entered the apartment building through the front entrance and tried the door to Boulanger's apartment. Upon finding that it was locked, they broke down the door with a battering ram. As they were coming forward with the battering ram, the occupants inside the apartment asked who was there. After breaking down the door, the police threw a flash-bang grenade into the apartment and entered, yelling "police officers" and "search warrant." One of the officers carried a sub-machine gun. They arrested Boulanger without any resistance. The officers found the $100 in recorded buy money in Boulanger's rear pants pocket. The police interviewed Boulanger after he had waived his Miranda rights. During the interview, Boulanger claimed that he was doing a tattoo on someone that evening and had no idea why he was being arrested. He also claimed that he had received the recorded buy money in exchange for performing tattoos earlier in the evening.

The police searched the apartment and found a black backpack in the living room which contained tattoo equipment. The backpack contained a white rubber glove with a loaded.25 silver handgun inside it. The pack also contained thirty-five 20 milligram Oxycontin pills, seven 80 milligram Oxycontin pills, and twenty 160 milligram Oxycontin pills. In the same room as the backpack in a hutch drawer, the police found a pair of thermal underwear pants with one leg missing. The thermal underwear was not seized. This same drawer contained a newspaper article about the robbery. Finally, in the same room near both the backpack and the hutch, the officers found a bill addressed to Boulanger and a wallet with Boulanger's identification.

A few days later, on September 26, 2003, a pharmacy employee found empty pill bottles in the woods behind the store. Officers subsequently searched the area and found a plastic Brooks Pharmacy bag in a culvert with empty Oxycontin and methadone bottles inside, a 49ers hat, hiking boots, and a thermal underwear pants leg with holes cut in it.

On November 20, 2003, Boulanger was charged in a five-count indictment. On August 23, 2004, a superseding indictment was issued charging Boulanger with robberies involving controlled substances, in violation of 18 U.S.C. § 2118(a) and (c)(1) ("Count I"); use of a firearm in a crime of violence, in violation of 18 U.S.C. § 924(c) ("Count II"); possession of a firearm by a

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prohibited person, in violation of 18 U.S.C. § 922(g)(1) ("Count III"); distribution of a controlled substance, in violation of 21 U.S.C. § 841(a) (1) ("Count IV"); and possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841 (a)(1) ("Count V").

Boulanger filed a motion to suppress the items seized from the apartment, arguing that the no-knock entry was unreasonable and constituted a violation of the Fourth Amendment. After a hearing on September 2, 2004, the district court tentatively denied the motion and explained its reasoning. However, the court continued the hearing so that Boulanger's attorneys could determine whether it was in fact the policy of the state judge to leave the decision of whether to conduct no-knock entries up to the police.5 The hearing reconvened on October 1, 2004, after which the district court denied the motion to suppress. In its decision, the district court found that the police had a reasonable suspicion that Boulanger would act violently if the police had knocked and announced their presence. The court also found that the no-knock entry was valid even though the government had not obtained authorization for the no-knock entry from the judge who issued the warrant. The court also found that the entry and arrest were conducted in a reasonable manner.

Boulanger also filed a motion to sever Counts I and II from Counts III, IV, and V. The district court denied this motion on September 16, 2004. Boulanger was convicted by a jury of Counts I, II, III, and V on October 8, 2004.6 Boulanger moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29, but the district court denied this motion. The district court sentenced Boulanger to 4 60 months' imprisonment. Boulanger now appeals the denials of the motion to suppress, the motion to sever, and the motion for judgment of acquittal. Boulanger also argues for the first time that the district court should have suppressed the evidence from the search because the police...

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