853 F.3d 39 (1st Cir. 2017), 14-2292, United States v. Faust

Docket Nº:14-2292
Citation:853 F.3d 39
Opinion Judge:TORRUELLA, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. TODD FAUST, Defendant, Appellant
Attorney:Myles D. Jacobson, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.
Judge Panel:Before Torruella, Lynch, and Barron, Circuit Judges. LYNCH, Circuit Judge, concurring. BARRON, Circuit Judge, with whom TORRUELLA, Circuit Judge, joins, concurring. LYNCH, Circuit Judge, concurring. BARRON, Circuit Judge, with whom TORRUELLA, Circuit Judge, joins, concurring.
Case Date:April 05, 2017
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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853 F.3d 39 (1st Cir. 2017)

UNITED STATES OF AMERICA, Appellee,

v.

TODD FAUST, Defendant, Appellant

No. 14-2292

United States Court of Appeals, First Circuit

April 5, 2017

As Amended April 14, 2017.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Michael A. Ponsor, U.S. District Judge.

Myles D. Jacobson, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.

Before Torruella, Lynch, and Barron, Circuit Judges. LYNCH, Circuit Judge, concurring. BARRON, Circuit Judge, with whom TORRUELLA, Circuit Judge, joins, concurring.

OPINION

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TORRUELLA, Circuit Judge.

Todd Faust (" Faust" ) entered a conditional guilty plea to being a felon in possession of ammunition under 18 U.S.C. § 922(g)(1).

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He contends on appeal that his conviction must be overturned because police obtained the ammunition in violation of the Fourth Amendment and because the statements he made to police during his station house interview were obtained as part of a two-step interrogation technique in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Faust also appeals his sentence on the ground that the district court erroneously concluded that his prior convictions for resisting arrest, Mass. Gen. Laws ch. 268, § 32B(a), and assault and battery on a police officer (" ABPO" ), Mass. Gen. Laws ch. 265, § 13A, were violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B) (" ACCA" ). For the reasons that follow we affirm in part and remand in part.

I. Background

On May 6, 2011, the Massachusetts Palmer District Court issued a warrant for police to search the premises at 220 Pearl Street, Apt. 4-R in Springfield, Massachusetts (" Apartment 4-R" ), as well as the persons of Faust and Kristina Leighty (" Leighty" ). The warrant application included an affidavit from Sergeant Boucher of the Monson Police Department and several other documents, including several police reports from the Chicopee Police Department.

These documents set forth that on April 22, 2011, the home of Joseph Barrett was broken into in Monson, Massachusetts (the " Monson robbery" ), which resulted in the theft of several items, including a wristwatch, a laptop computer, ten rolls of pennies, a Leatherman tool, and two women's wallets. That same morning, a Monson police officer pulled over a vehicle that Leighty was driving as part of a traffic stop. Faust was a passenger in the vehicle. The officer had the vehicle towed due to a lack of insurance and a revoked registration.1

According to the submitted documents, Leighty and Faust remained in the area until Gregory Charbonneau (" Charbonneau" ) picked them up and drove them to Apartment 4-R. Charbonneau told police that Leighty gave him $6.50 in rolled pennies as payment for the ride. Additionally, Leighty gifted him a watch that was later identified as one of the items stolen during the Monson robbery.2

Sergeant Boucher's affidavit concluded that based on the timing of Leighty's gift to Charbonneau, he believed that Leighty and Faust were in possession of additional items stolen during the Monson robbery. The search warrant was granted on May 6, 2011.

Pursuant to the warrant, officers from the Massachusetts State Police, the Springfield Police Department, the Monson Police Department, the Chicopee Police Department, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (collectively, the " officers" ) executed a search of Apartment 4-R, as well as the persons of Leighty and Faust.

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When the officers entered Apartment 4-R, Leighty told the officers that Faust had fled upstairs. The officers followed Faust into Apartment 5-R. Upon entering the apartment, two officers observed Faust run towards the back door of the apartment and drop a black backpack on the floor. Faust was apprehended as he attempted to flee out the backdoor and was placed in handcuffs. The officers did not advise Faust of his Miranda rights.

Officer Richard, a Springfield police officer, recovered Faust's backpack, in which he found a loaded 9mm pistol and ammunition for other weapons. Officer Richard asked Faust if he had a right to be in Apartment 5-R and Faust responded that he did not. Faust was held in the back porch of Apartment 5-R while the officers assessed the scene.

Although the sequence of events is not entirely clear from the record, it is evident that Faust spoke with Officer Richard, Detective Dion of the Chicopee Police Department, and Agent Meehan of the Bureau of Alcohol, Tobacco, Firearms and Explosives while he was on the back porch. According to Officer Richard's testimony, Faust offered, without prompting, to show him where other stolen guns were located after Faust overheard Officer Richard tell other officers at the scene that the gun in Faust's backpack matched one of the guns stolen during the Chicopee robbery.[3] Officer Richard's testimony suggests that this exchange took place before Agent Meehan spoke with Faust. However, Officer McNally, a Springfield police officer at the time, testified that Faust began talking to Officer Richard after Detective Dion and Agent Meehan had spoken with Faust.

At some point, Detective Dion approached Faust and informed him that the gun found in the backpack matched one of the guns reported stolen during the Chicopee robbery. Detective Dion told Faust that he did not have to speak with him, but inquired if Faust would like to do so. Faust told Detective Dion that he was willing to speak with him.

Agent Meehan also approached Faust and asked his name, address, and whether he would like to speak with investigators. Agent Meehan told Faust that he was interested in recovering other guns that had been stolen during the Chicopee robbery. Faust again indicated that he was willing to speak with the investigators.

Subsequently, Officer Richard and Officer McNally took Faust in a police cruiser and drove past the location where Faust claimed that additional guns stolen during the Chicopee robbery were located. Officer Richard and Officer McNally then drove Faust to the Springfield police station.

Once at the station, Faust was advised of his Miranda rights. Faust confirmed that he understood his rights and that he wished to speak with the interviewing officers. During his interview, Faust admitted to his involvement, alongside Leighty and two other individuals, in the Chicopee robbery. Faust also admitted to handling the 9mm pistol found in his possession and stated that his fingerprints would likely be found on it.

Faust sought to suppress the statements he made during his police station interrogation, a motion which the district court denied. In accordance with the ACCA, the district court sentenced Faust to 180 months of imprisonment. During sentencing, Faust objected to his classification as an armed career criminal on the ground that neither his conviction for resisting

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arrest nor for ABPO qualify as ACCA predicates.

This timely appeal followed.

II. Probable Cause to Search

When reviewing the denial of a motion to suppress, " we view the facts in the light most favorable to the district court's ruling on the motion, and we review the district court's findings of fact and credibility determinations for clear error." United States v. Fermin, 771 F.3d 71, 76-77 (1st Cir. 2014) (quoting United States v. Camacho, 661 F.3d 718, 723 (1st Cir. 2011)) (internal citations and quotation marks omitted). " [W]e review conclusions of law de novo, giving plenary review to the district court's application of law to facts, reasonable-suspicion determinations, and ultimate decision to deny the motion." Id. at 77 (citing Camacho, 661 F.3d at 724). However, " we afford an ample amount of deference to the issuing magistrate's finding of probable cause" when reviewing if an affidavit supports the issued warrant. United States v. Dixon, 787 F.3d 55, 58 (1st Cir. 2015) (citations omitted). As a result, we will reverse a finding of probable cause " only if we see no substantial basis for concluding that probable cause existed." Id. at 59 (quoting United States v. Ribeiro, 397 F.3d 43, 48 (1st Cir. 2005)). Probable cause is present if " the facts and circumstances as to which police have reasonably trustworthy information are sufficient to warrant a person of reasonable caution in the belief that evidence of a crime will be found." United States v. Silva, 742 F.3d 1, 7 (1st Cir. 2014) (quoting Robinson v. Cook, 706 F.3d 25, 32 (1st Cir. 2013)).

" A warrant application must demonstrate probable cause to believe that (1) a crime has been committed-the 'commission' element, and (2) enumerated evidence of the offense will be found at the place to be searched-the so-called 'nexus' element." United States v. Rodrigue, 560 F.3d 29, 32-33 (1st Cir. 2009) (quoting Ribeiro, 397 F.3d at 48). To satisfy the nexus element, the warrant application " must give someone of 'reasonable caution' reason to believe that evidence of a crime will be found at the place to be searched." Ribeiro, 397 F.3d at 49 (citation omitted).

Faust contends that Sergeant Boucher's affidavit failed to establish probable cause to search his person. Specifically, he argues there was no probable cause to believe that the items listed in the warrant could be found on him.4

As the district court observed, Sergeant Boucher's affidavit stated that: (1) Faust and Leighty had been detained for a traffic violation on April 22, 2011, the same day as the Monson robbery, which resulted in their vehicle being towed; (2) on...

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