874 F.3d 1 (1st Cir. 2017), 16-1140, United States v. Bain

Docket Nº:16-1140
Citation:874 F.3d 1
Opinion Judge:KAYATTA, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. YRVENS BAIN, a/k/a ' E,' Defendant, Appellant
Attorney:Christine DeMaso, Assistant Federal Public Defender, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom William D. Weinreb, Acting United States Attorney, was on brief, for appellee.
Judge Panel:Before Torruella, Kayatta, and Barron, Circuit Judges.
Case Date:October 13, 2017
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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874 F.3d 1 (1st Cir. 2017)

UNITED STATES OF AMERICA, Appellee,

v.

YRVENS BAIN, a/k/a " E," Defendant, Appellant

No. 16-1140

United States Court of Appeals, First Circuit

October 13, 2017

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Indira Talwani, U.S. District Judge.

United States v. Bain, 155 F.Supp.3d 107, (D. Mass., Feb. 17, 2015)

Christine DeMaso, Assistant Federal Public Defender, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom William D. Weinreb, Acting United States Attorney, was on brief, for appellee.

Before Torruella, Kayatta, and Barron, Circuit Judges.

OPINION

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KAYATTA, Circuit Judge.

The police arrested Yrvens Bain after he emerged from a multi-family building in Malden, Massachusetts. During the search incident to that arrest, they found a set of keys in his possession. The police tried these keys on the front door of the multi-family building and on the doors to three apartments inside--one on the first floor, two on the second floor. The keys opened the door to one of the units on the second floor. The police included this information in an application for a warrant to search that unit. The warrant issued, and the search produced a firearm and over twenty-six grams of heroin mixed with fentanyl. Bain moved to suppress that evidence. He argued, among other things, that the officers conducted an unlawful search by turning his key in the locks to identify the unit to search, and that there was no probable cause to issue a warrant to search the unit without that identification.

The district court denied Bain's motion. The court also subsequently denied his motion in limine to exclude a credit-card-making machine found during the search. At trial, a jury convicted Bain on two counts of distribution of heroin, see 21 U.S.C. § 841(a)(1), one count of possessing heroin with intent to distribute, see Id., and one count of possessing a firearm and ammunition after a conviction for a felony punishable by over one year in prison, see 18 U.S.C. § 922(g)(1). At sentencing, the district court applied the fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (ACCA), see Id. § 924(e). Bain appeals the rulings on his motion to suppress, his motion in limine, and his sentence. While we agree with Bain that the officers conducted an unlawful search by testing the key in the lock of the unit in which he was staying, we nevertheless affirm the denial of the motion to suppress because in searching

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the apartment the officers relied in good faith on the intervening warrant. We also affirm Bain's conviction and sentence.

I

.

A

.

Brian Connerney, a detective in the Arlington, Massachusetts Police Department and a Task Force Agent with the Drug Enforcement Administration (DEA), signed both affidavits supporting the search warrant application.1 We describe the relevant information contained in those affidavits.

In early 2014, the DEA began investigating Bain. At the time, Bain had four prior convictions for " drug trafficking offenses." All four involved cocaine and the most recent had occurred in 2007. By 2014, Bain's six-year prison sentence for that conviction had ended and his five-year probation term had just begun.

As part of the investigation, a cooperating witness made two controlled buys from Bain. In connection with both controlled buys, officers searched the cooperating witness beforehand, provided him with a recording device and the cash used to purchase the drugs, and retrieved the drugs from him afterwards.

The cooperating witness made the first controlled buy on February 26, 2014. After texting Bain to request $100 worth of heroin, the cooperating witness picked Bain up at an apartment complex in Waltham, Massachusetts, next to which Bain's car was parked.2 The cooperating witness paid $100 in cash for a baggie containing 0.80 grams of a mixture of heroin and fentanyl.

Three days later, police responded to a report of a fight in progress at the same apartment complex in Waltham. Bain had been living in his brother's apartment in that complex, the two men had been in an argument, and Bain had punched his brother. These events precipitated an assault and battery charge against Bain, which landed him in police custody until March 17. When Bain was released, he informed his probation officer that he planned to live at his mother's residence in Arlington. But Connerney never saw Bain at that residence and never saw his car parked outside.

The day after Bain's release, he texted the cooperating witness, saying, " I was away for awhile but now I'm back hit me up everything's good." After the cooperating witness again requested $100 worth of heroin, Bain directed him to " Waite st." in " Malden." Bain once again got into the cooperating witness's car and sold him a baggie containing heroin for $100 in cash. The cooperating witness drove around the block and let Bain out of the car on Webster Street.

On several subsequent occasions, Connerney and other officers involved in the investigation observed Bain's car parked on Webster Street in Malden, near the intersection with Laurel Street. On March 28 at 2:35 P.M., officers in the Malden

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Police Department observed Bain park on Webster Street, walk to Laurel Street, and enter 131 Laurel Street. Roughly ten hours later, at 12:30 A.M. on March 29, Connerney observed Bain's car still parked on Webster Street.

Two days later, with a signed criminal complaint in hand, officers went to 131 Laurel Street to arrest Bain. They saw Bain emerge through the front door of 131 Laurel Street, walk to his car around the corner on Webster Street, and get inside. As agents approached the car, Bain locked his doors and swallowed something. Agents removed him from the car, placed him under arrest, conducted a search incident to arrest, and seized credit cards and a set of keys from his person.

The agents used the keys they had seized from Bain to open the front door of 131 Laurel Street. Connerney described the building located at 131 Laurel Street as follows: 131 Laurel Street is a two and a half story home located near the intersection of Laurel Street and Webster Street in Malden, Massachusetts. A hedge surrounds the front yard. . . . The main entrance is a large wooden door with a circular window and is accessed by a set of stairs rising from a sidewalk running alongside Laurel Street. At the front door, there are four black mail boxes, two on each side of the door. [Unit D3] is located on the second floor . . . . [Unit] D is accessed by walking up the main staircase to the second floor landing. The door is on the right hand side. It is the only door on the right hand side of the second floor landing.

Bain's name was not on any of the four mailboxes.

After entering the building, the agents " tried the keys in one door on the first floor and two doors on the second floor." The keys fit the door to unit D. They entered unit D and conducted a " protective sweep to make sure no one else was inside." The unit was empty. During the protective sweep, agents observed mail addressed to " 131 Laurel Street, Apartment D, Malden, Massachusetts," a parking ticket issued to Bain's car on a chair in one of the bedrooms, and a safe in the same bedroom.

Armed with the information that the keys seized from Bain opened the main door to 131 Laurel Street and the door to unit D, the officers sought a warrant to search unit D. In addition to the information summarized above, the affidavit used to obtain the warrant contained a series of statements, based on Connerney's training and experience, establishing that it was reasonable to expect that Bain kept drugs, tools of the trade, cash, and records in the place where he resided.

Upon review of the affidavit, a federal magistrate judge issued a warrant to search unit D for a long list of items, including records relating to the purchase and sale of controlled substances, cash derived from the sale of controlled substances, documents relating to the control of unit D, photographs of relevant property, and personal electronic devices. The subsequent search produced several key pieces of evidence against Bain. In one of the bedrooms, the police found a parking ticket for Bain's car (the same one they saw during their warrantless entry into the unit), $300 in cash, and, in a trash can, used latex gloves and sandwich bags with the corners torn off. In a closet of that bedroom, they found several cards with

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Bain's name on them: a Massachusetts driver's...

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