638 F.3d 326 (1st Cir. 2011), 09-1593, United States v. Werra

Docket Nº:09-1593.
Citation:638 F.3d 326
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. James WERRA, Defendant, Appellant.
Attorney:Page Kelley, Assistant Federal Public Defender, Federal Defender Office, for appellant. Richard M. Re, Attorney, Criminal Division, U.S. Department of Justice, with whom Lanny A. Breuer, Assistant Attorney General, Greg D. Andres, Acting Deputy Assistant Attorney General, Carmen Milagros Ortiz, U...
Judge Panel:Before LIPEZ, HOWARD and THOMPSON, Circuit Judges. HOWARD, Circuit Judge (dissenting).
Case Date:March 22, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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638 F.3d 326 (1st Cir. 2011)

UNITED STATES of America, Appellee,

v.

James WERRA, Defendant, Appellant.

No. 09-1593.

United States Court of Appeals, First Circuit.

March 22, 2011

Heard June 10, 2010.

Page 327

Page Kelley, Assistant Federal Public Defender, Federal Defender Office, for appellant.

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Richard M. Re, Attorney, Criminal Division, U.S. Department of Justice, with whom Lanny A. Breuer, Assistant Attorney General, Greg D. Andres, Acting Deputy Assistant Attorney General, Carmen Milagros Ortiz, United States Attorney, and Dina Chaitowitz, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before LIPEZ, HOWARD and THOMPSON, Circuit Judges.

LIPEZ, Circuit Judge.

This case raises challenging questions about the legality of a stop-and-frisk conducted after law enforcement officers forced their way into a house occupied by a group of unrelated individuals to execute an arrest warrant. Inside the residence, the officers encountered and pat-frisked appellant James Werra— who was not the subject of the warrant— and discovered a gun in his pocket. After Werra was charged with being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), he unsuccessfully sought to suppress the gun as the fruit of an unlawful search. The district court concluded that the officers lawfully entered the house and that Werra's detention and frisk were justified as reasonable safety measures. Having failed to obtain suppression of the weapon, Werra entered a conditional guilty plea.

On appeal, Werra reiterates his contentions that the officers lacked the necessary level of suspicion to justify entry of the house without consent and that, like the residents of a traditional single-family home, he had a reasonable expectation of privacy in the foyer and other common areas of the house. Hence, he claims that the officers' forced entry violated his Fourth Amendment rights and the gun must be suppressed. Alternatively, he argues that his suppression motion should have been granted because the officers had no justification for conducting the frisk that produced the weapon.

After close consideration of the law and the facts, we conclude that the officers had insufficient grounds to justify entering the house without consent. We also conclude that Werra demonstrated an expectation of privacy in the foyer of 63 Menlo Street sufficient to challenge the officers' unlawful entry into the dwelling. The stop-and-frisk of Werra thus violated his Fourth Amendment rights, and he is entitled to suppression of the firearm seized from him. Accordingly, we vacate his conviction, reverse the denial of his motion to suppress, and remand for further proceedings.

I.

We recite the underlying facts as found by the district court, noting where relevant the defendant's contrary view of the testimony presented at the suppression hearing.

On the morning of November 10, 2006, Police Detective Michael Schaaf and Massachusetts State Trooper Robert Fries were driving around Brockton, Massachusetts, seeking to execute outstanding arrest warrants, including one for Jeanine Daley. They encountered a police informant named Christine, who previously had provided Schaaf with reliable information about the location of a suspect. Christine told the officers that she recently had seen Daley at 63 Menlo Street, a house in a residential neighborhood that Schaaf had been told within the previous year was a " sober house" for recovering drug abusers. Christine told the officers that Daley, whom Schaaf knew to be a drug abuser, was " staying" there.1

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The officers proceeded to 63 Menlo Street. Their knock at the front door was answered by Jeffrey Cicerano, a familiar figure to Schaaf because Schaaf had once arrested Cicerano on an outstanding warrant. Cicerano was the named tenant on the lease for 63 Menlo Street and paid most of the $3,000 rent, but other people lived there and contributed to that payment. Appellant Werra paid Cicerano to rent the third floor, which had a bedroom, kitchenette, and a bathroom. Although Werra's girlfriend and her child had at some point lived with him there, they had moved out before November 10. After their departure, Werra at times slept on a couch in the living room " because people would ‘ party’ on the third floor." United States v. Werra, No. 06-10414, 2008 WL 4280035, at *1 (D.Mass. Sept. 11, 2008) (order denying motion to suppress).

Schaaf testified that when he saw Cicerano at 63 Menlo Street, he became concerned that the residence had become a " drug house." Standing outside the front door, Schaaf asked Cicerano if he could talk with him and others in the house. Cicerano asked if Schaaf had a warrant. Schaaf said he did not, and then asked if he needed one. Cicerano answered affirmatively and started to walk away from the door. The officers responded by kicking at the bottom of the door, prompting Cicerano to turn back and offer to talk with them outside.

As Cicerano opened the door, however, the officers pushed past him into the entry foyer.2 Despite Cicerano's demands that the officers leave, they persisted and instructed Cicerano to bring everyone in the house down to the entry area. Cicerano went upstairs, and the officers turned their attention to the living room that was adjacent to the foyer. Through a partially open set of pocket doors, Schaaf and Fries observed Werra sitting on a couch, where he was— in Schaaf's words— " just sort of staring out into space." Schaaf asked Werra if he was all right, but received no response.

Schaaf then heard sounds behind him, and he turned to see three individuals entering the foyer. Two emerged from a first-floor bedroom and the third came from the kitchen, which was located at the back of the house opposite the front door. Seeing movement out of the corner of his eye, Schaaf turned again to see Werra walking out of the living room toward him. Werra's hands were in his front pants pockets. Schaaf saw a clip on the right pocket that he recognized as part of a pocket knife, and he reached over and removed the knife from the pocket. Observing that Werra's left hand was still in his other pocket and " moving a little bit," Schaaf patted Werra down and felt a hard object that he identified as a firearm. He removed the gun and told Werra he was under arrest. Werra attempted to flee, but was subdued after a brief struggle. He was subsequently charged for unlawfully possessing the weapon as a felon.3

In ruling on Werra's motion to suppress the gun, the district court issued a thoughtful 27-page decision that focused on two separate aspects of the officers' conduct: their entry into 63 Menlo Street

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and the stop-and-frisk of Werra. The court concluded that no Fourth Amendment violation occurred with respect to either action. It found that the officers had the requisite level of suspicion that Daley was inside 63 Menlo Street to permit forced entry into the house to execute the warrant for her arrest. The court also held that, given the lawful entry, the officers were allowed to briefly detain Werra while they looked for Daley and arrested her. The court further concluded that frisking Werra was justified given the circumstances, which included his possession of the knife and the officers' suspicion that the residence was being used as a " drug house." 4

Having rejected Werra's challenge to the legality of the frisk that produced the gun, the court denied his motion to suppress the weapon. Werra's conditional guilty plea and this appeal followed.

II.

Werra claims that his Fourth Amendment rights were violated in two distinct ways, and he asserts that either violation is sufficient to require suppression of the firearm seized from him. First, he contends that the officers unjustifiably forced their way into 63 Menlo Street— his residence— and that any evidence resulting from their unlawful presence in the house must be suppressed. Werra alternatively claims that, whether or not the officers were lawfully present in the foyer, they lacked justification for conducting the stop-and-frisk that revealed the gun. As described above, the district court rejected both of these contentions.

In evaluating a district court's denial of a motion to suppress, we review its findings of fact for clear error and apply de novo review " to the application of law to those facts and to conclusions of law." United States v. Rheault, 561 F.3d 55, 58 (1st Cir.2009). Werra bears the burden of showing a violation of his Fourth Amendment rights. Id. 58-59.

The government argues that the court's rulings are supportable on multiple, independent grounds. First, it asserts that, under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the officers lawfully entered 63 Menlo Street without consent to execute the arrest warrant for Daley, 5 and, once inside, they had the right under Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), to detain Werra to ensure that the warrant could be executed " safely and effectively." See Werra, 2008 WL 4280035, at *7.6 The government argues that the frisk became necessary and proper because of the officers' objectively reasonable

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suspicion that Werra was armed and dangerous. See Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

Second, the government argues that Werra may not challenge the officers' entry into, or presence in, the house because he lacked a reasonable expectation of privacy in the foyer— the location in which he was detained and frisked. See New York v. Class, 475 U.S. 106, 112, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) ( " [T]he State's intrusion into a particular area...

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