553 F.3d 6 (1st Cir. 2009), 07-2299, United States v. Graham

Docket Nº:07-2299.
Citation:553 F.3d 6
Party Name:UNITED STATES of America, Appellee, v. Derek GRAHAM, Defendant, Appellant.
Case Date:January 09, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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553 F.3d 6 (1st Cir. 2009)

UNITED STATES of America, Appellee,


Derek GRAHAM, Defendant, Appellant.

No. 07-2299.

United States Court of Appeals, First Circuit.

January 9, 2009

Heard Sept. 9, 2008.

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Martin J. Vogelbaum, Assistant Federal Public Defender, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.

Before HOWARD, BALDOCK [*], and SELYA, Circuit Judges.

HOWARD, Circuit Judge.

Appellant Derek Graham was on probation in Massachusetts for various drug offenses. When he failed to comply with probation reporting requirements, the police secured a warrant for his arrest. To execute this warrant, officers entered an apartment, and, after finding Graham in one of the apartment's bedrooms, they arrested him and searched the room. The search yielded a sawed-off shotgun and ammunition. Based on this evidence, a federal grand jury charged Graham with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).

Graham sought to suppress the evidence, arguing that the police violated the Fourth Amendment of the United States Constitution in acquiring it. After the district court resolved the suppression motion against Graham, he entered a conditional guilty plea, reserving the right to appeal the suppression ruling. He now exercises that right.

Graham argues that both the officers' entry into the apartment and the subsequent search of the bedroom where he was arrested violated the Fourth Amendment. He claims that because he was a social guest in the apartment, the police needed to first obtain a search warrant to enter the apartment, in addition to the arrest warrant they had procured. Additionally, he argues that even if the arrest warrant justified the entry into the apartment, the police still needed a search warrant to conduct the search of the bedroom.

In response, the government argues that the entry by the officers was permitted under the rule of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), because they had a warrant for Graham's arrest, and they reasonably believed prior to entry that Graham resided at the apartment. As for the subsequent search of the bedroom, the government submits that the search was justified as either a valid probation search or a search incident to arrest. We affirm.


A. Background

We state the relevant facts as the trial court found them, consistent with record support. United States v. Ruidiaz, 529 F.3d 25, 27 (1st Cir.2008).

After committing various drug offenses, Derek Graham was sentenced to probation by a Massachusetts state court. The probation order, issued in mid-October 2004, required Graham to comply with several standard conditions. The order also included the following search condition:

On the basis of a reasonable suspicion that a condition of the probationer's probation

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has been violated, a probation officer, or any law enforcement officer acting on the request of the probation office, may search the probationer's property, his or her residence, and any place where he or she may be living, and may do so with or without a search warrant, depending on the requirements of law.

Graham signed the probation order, indicating that he had read and understood the conditions of probation.

Although on probation for drug offenses, Graham had previously pled guilty to possessing firearms illegally, and the police connected him with a violent gang in his neighborhood known as the Crown Path Gang. This gang had an ongoing rivalry with a gang from a neighboring area known as the Everton Young Guns.

Graham fell out of compliance with the probation order in late-October 2004, failing to meet the order's reporting requirements. As a result, Graham's probation officer, Thomas Todd (Todd), sought and obtained a warrant for his arrest. Todd understood Graham to be living with his mother in Dorchester, Massachusetts. The police attempted to execute the warrant at this location but did not find him there.

Over the next few months, Todd learned that Graham had potentially violated another one of the conditions of his probation, this one requiring him to obey all local, state, and federal laws. Specifically, another probationer told Todd that Graham had " brandished a weapon on him" and a member of the Everton Young Guns told Todd that the gang suspected Graham was responsible for several shootings of their members.

At first unable to locate Graham, in time the authorities began to hone in on his whereabouts. In May 2005, Todd learned from another probation officer that Graham had been " staying at" a house on the corner of Harvard Street and Harvard Park. The address of this building was 18 Harvard Street. After receiving the tip, Todd drove by the house. He recalled having previously seen another member of the Crown Path Gang on the house's porch. Todd provided the Boston Police Department with this information. The police then informed Todd of a report of a domestic incident at 18 Harvard Street, identifying Graham as the offender. The report stated that Chanice Meadows (Chanice) alleged that she had been threatened by her daughter's boyfriend, Derek Graham. The report listed Graham's address as 18 Harvard Street.

Based on this information, a magistrate added the 18 Harvard Street address to the arrest warrant for Graham. Todd again contacted the Boston Police Department and requested that the warrant be executed. Todd informed the police that Graham might be armed, that Graham was subject to a probation search condition, and that a probation officer would be available to perform the probation search if Graham were found. The police informed Todd that the warrant would be executed the next day, a Saturday.

Around 7 a.m. on Saturday morning, police officers went to 18 Harvard Street with the arrest warrant. They showed a picture of Graham to the person who answered the door and were directed to the third-floor apartment. Chanice answered the door to the apartment but denied that Graham was present. The officers informed Chanice that they had a warrant and entered the apartment to look for Graham.

They discovered Graham in the apartment's rear bedroom. The officers noticed a number of items in the room, including men's clothes on the floor and in a duffel

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bag, several boxes of shoes against a wall, men's toiletries on a bureau next to a bed, and a newspaper clipping and several pictures on a wall in the room. The newspaper clipping concerned the murder of a member of the Everton Young Guns-the Crown Path Gang's rival gang-and the pictures were of individuals making hand-signs associated with the Crown Path Gang.

The officers arrested Graham, handcuffed him, and brought him to the living room, which was in the front of the apartment. They then contacted the probation officer on duty, who arrived at the apartment fifteen minutes later with copies of Graham's probation documents. The probation officer asked the officers to search the bedroom where Graham was found. In the course of this search, the police found a sawed off shotgun and ammunition in the drawer of a dresser. The officers also discovered a small safe underneath the bed. Using a knife, an officer opened the safe and discovered various types of ammunition.

B. State court proceeding

Massachusetts charged Graham with possession of a shotgun and ammunition in violation of state law. Graham moved to suppress the evidence. After a suppression hearing, the state court granted Graham's motion.

The state court concluded that the officers' entry into the apartment was justified under Payton because the officers reasonably believed that Graham resided at the apartment. The court, however, determined that the subsequent search of the room where Graham was found violated Graham's rights under the Massachusetts Declaration of Rights in the Massachusetts constitution. The court explained that article 14 of the Massachusetts constitution, as interpreted by the Supreme Judicial Court of Massachusetts in Commonwealth v. LaFrance, 402 Mass. 789, 525 N.E.2d 379 (1988), barred probation searches executed without a search warrant unless " one of the established exceptions to [the search warrant] requirement" applied. Finding that no such exception applied in Graham's case, the state court suppressed the evidence.1

C. Federal district court proceeding

Subsequent to the state court's resolution of the suppression issue, the United States charged Graham in federal court with being a felon in possession of a firearm and ammunition.

Like the state court, the federal court concluded that the police entry into the apartment was permissible under Payton. The court ruled in the alternative that the probation order itself allowed the officers to enter the apartment. Unlike the state court, however, the district court concluded that the police did not need a search warrant to search the room where Graham was found.

The district court determined that the police collected the evidence from the bedroom pursuant to a valid probation search. Relying on United States v. Knights, 534 U.S....

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