U.S. v. Mousli

• Decision Date: 13 December 2007
• Docket Number: No. 06-2079.,06-2079.
• Citation: 511 F.3d 7
• Parties: UNITED STATES of America, Appellee, v. Hamman MOUSLI, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

511 F.3d 7

UNITED STATES of America, Appellee, v. Hamman MOUSLI, Defendant, Appellant.

No. 06-2079.

United States Court of Appeals, First Circuit.

Heard August 2, 2007.

Decided December 13, 2007.

Derege B. Demissie, with whom Demissie & Church was on brief, for appellant.

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

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

TORRUELLA, Circuit Judge.

Defendant-Appellant Hamman Mousli was arrested for fraudulent use of Universal Product Code ("UPC") stickers by Somerville police on June 9, 2004. The police applied for, and were issued, a search warrant for "19 Orvis Road," where the appellant lived. During the search, the police seized what appeared to be counterfeit U.S. currency as well as a rifle and a handgun. Prior to trial, Mousli filed a motion to suppress evidence seized from his apartment. At the conclusion of the Government's case, Mousli moved for a judgment of acquittal on the counterfeiting charge claiming that the evidence introduced was insufficient to establish that the bills were counterfeit or that he intended to defraud. The district court denied the motion and dismissed his claim. Mousli appeals these decisions. After careful review, we affirm the district court.

I. Background

On April 1, 2004, security personnel at a Target store in Watertown, Massachusetts observed the defendant, Hamman Mousli, acting nervous and rapidly selecting electronic products in the store. They also observed him at the checkout where he paid $46.15 for products actually valued at over $200.00. Target security personnel allowed Mousli to leave, but they noted the car he was driving: a Chevy Blazer with New Hampshire license plate number 179 8326 ("the Chevy Blazer"). After an investigation by a Target investigator, Matthew Townsend, Target found that Mousli was using pre-printed UPC stickers to purchase items below their true selling price. Townsend linked Mousli to similar scams at Target stores in Somerville, Everett, and Saugus, Massachusetts. Less than a week later, Mousli was confronted at the Target in Somerville by store personnel who called the Somerville police. At the time, Mousli was in possession of two pre-printed UPC stickers, and he was arrested.

That same day, Townsend saw the Chevy Blazer parked in the Target parking lot. Through the window of the car, Townsend saw a package that listed "19 Orvis Rd., Revere, MA" as the return address. When he was arrested, Mousli gave 19 Orvis Road as his address, which matched information the police had for him from the Registry of Motor Vehicles. The address also matched information Mousli provided at a prior arrest.

On June 3, 2004, Somerville Police Detective Sergeant Joseph McCain and another officer drove to 19 Orvis Road, and he viewed the house from the street. The house was a two-story, ranch-style house with a main entrance at the front and another entrance on the side. McCain also observed the Chevy Blazer parked nearby. Based on his observations of the house and the surrounding houses, McCain believed the house to be a single-family residence.

Subsequently, the police sought a search warrant for 19 Orvis Road in Somerville District Court. The application for the search warrant was supported by affidavits from both McCain and Townsend. The application stated that it was for a property "occupied by and/or in the possession of: Mr. Hamman Mousli." The application also stated that the police sought to seize various types of documents potentially related to the UPC fraud, as well as computer equipment and illegally obtained merchandise. The application described the property as:

A residence located at 19 Orvis Road. 19 Orvis Road is a two story duplex residence brown and white in color. . . . There are two entrances to the residence. The main entrance is in the center of the first floor and is facing the street. The number 19 is located to the left side of this door. What appears to be a secondary entrance is located to the right side of the residence. . . . To the right of 19 Orvis Road is another single family dwelling with the number 11 to the left side of the door. The house is a white two story home.

On June 9, 2004, the court issued a warrant that described the property as a single-family, two-story duplex house. McCain and other officers executed the warrant that same day. When they went to the front door of the residence, they were informed by the owners that Mousli lived in a basement apartment that had a separate entrance at the house's rear. The police showed the owners the warrant and the owners permitted them to enter Mousli's apartment. While searching the apartment, the officers found and seized ten bills of counterfeit U.S. currency in various denominations. The bills were misshapen, discolored, splotched, and poorly cut. The officers also seized a rifle and a handgun.

On February 22, 2005, a federal grand jury returned a superseding indictment charging Mousli with violating 18 U.S.C. § 472,¹ possessing counterfeit securities, and 18 U.S.C. § 922(g)(5)(a),² being an illegal alien in possession of a firearm. On June 15, 2005, Mousli moved to suppress the evidence. After a hearing on April 26, 2006, the district court denied the motion. The case was then tried before a jury on June 12 and 13, 2006. On June 13, the jury returned guilty verdicts on both counts. On the same day, the district court imposed a prison sentence of time served to be followed by two years of supervised release. Mousli appeals.

II. Discussion

A. The Suppression Motion

On appeal, Mousli challenges the district court's denial of his motion to suppress the evidence the police found in his apartment at 19 Orvis Road, contending that the search violated the Fourth Amendment. His argument is without merit.

1. Standard of Review

In reviewing the district court's denial of a motion to suppress, "we accept the trial court's findings of fact unless they are clearly erroneous and subject its conclusions of law to de novo review." United States v. Coplin, 463 F.3d 96, 100 (1st Cir.2006) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). "A clear error exists only if, after considering all the evidence, we are left with a definite and firm conviction that a mistake has been made." United States v. Ferreras, 192 F.3d 5, 9-10 (1st Cir.1999). This court "will uphold a district court's decision to deny a suppression motion provided that any reasonable view of the evidence supports the decision." Id. at 10.

2. The Particularity of the Warrant

The protections of the Fourth Amendment are meant to guard against an invasion of individual liberty by the government. The Warrant Clause of the Fourth Amendment prohibits the issuance of any warrant except one "particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. "Any search intruding upon [an individual's] privacy interest must be justified by probable cause and must satisfy the particularity requirement, which limits the scope and intensity of the search." United States v. Bonner, 808 F.2d 864, 867 (1st Cir.1986) (citing United States v. Heldt, 668 F.2d 1238, 1256 (D.C.Cir.1981)). "When investigators fail to limit themselves to the particulars in the warrant, both the particularity requirement and the probable cause requirement are drained of all significance as restraining mechanisms, and the warrant limitation becomes a practical nullity." Ferreras, 192 F.3d at 10. Mousli argues that the particularity requirement necessitated that the warrant clearly authorize a search of his basement apartment.

"[T]he test for determining the adequacy of the description of the location to be searched is whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched." United States v. Vega-Figueroa, 234 F.3d 744, 756 (1st Cir.2000) (quoting Bonner, 808 F.2d at 866). While the particularity requirement obligates the police to "specify the precise unit that is the subject of the search," and "the general rule is that a warrant that authorizes the search of an undisclosed multi-unit dwelling is invalid," there are exceptions to this rule. United States v. Perez, 484 F.3d 735, 741 (5th Cir.2007).

The police can validly search a multi-unit dwelling even if the search warrant was only for a single-unit dwelling, provided the police reasonably believed that the dwelling contained only one unit. See Maryland v. Garrison, 480 U.S. 79, 85, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987); see also Pérez, 484 F.3d at 741 (upholding validity of warrant where address listed in warrant had more than one occupancy unit). In Garrison, the Supreme Court said that "we must judge the constitutionality of [the police officers'] conduct in light of the information available to them at the time they acted." Garrison, 480 U.S. at 85, 107 S.Ct. 1013.

Mousli argues that the search warrant obtained by the Somerville police lacked sufficient specificity because it did not identify his particular basement unit, but only listed 19 Orvis Road. Mousli relies on Ferreras in arguing that the authority granted by any warrant is limited to the specific places described in it, and thus, does not extend to additional or different places. See Ferreras, 192 F.3d at 11. Mousli's reliance is misplaced.

In Ferreras, we found that an attic was, in effect, included in a search warrant for the second floor of that same building because it was connected to the second floor apartment, lacked an exit to the street, and was not equipped for "independent living." Id. Mousli concludes from Ferreras's holding that because his basement apartment existed independently from the rest of the...