United States v. Bey

• Decision Date: 09 June 2016
• Docket Number: No. 15-1655,15-1655
• Citation: 825 F.3d 75
• Parties: United States of America, Appellee, v. Paul Bey, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

825 F.3d 75

United States of America, Appellee

v.Paul Bey, Defendant, Appellant.

No. 15-1655

United States Court of Appeals, First Circuit.

June 9, 2016

Vivianne Jeruchim, with whom Jeruchim & Davenport, LLP, Boston, MA, was on brief, for appellant.

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

Before Lynch, Kayatta, and Barron, Circuit Judges.

KAYATTA

, Circuit Judge.

Paul Bey pleaded guilty to a variety of drug and firearm offenses. Pursuant to Federal Rule of Criminal Procedure 11(a)(2)

, Bey's plea agreement reserved his right to have this court review the district court's denial of his motion to suppress the results of a search following an evidentiary hearing. Otherwise, the plea agreement expressly waived Bey's right to appeal his conviction, or to appeal any sentence that did not exceed seventy months. Bey now appeals not only the denial of the suppression motion, but also his sixty-month sentence, arguing that enforcing his waiver of any right to challenge his sentence would be a miscarriage of justice because the trial court incorrectly calculated the sentencing range under the United States Sentencing Guidelines (the “Guidelines”). For the reasons that follow, we affirm the denial of the suppression motion and reject the challenge to the sentence as waived.

I. Background

Because this appeal follows a guilty plea, we derive the facts from the plea agreement, the change-of-plea colloquy, the unchallenged portions of the presentence investigation report, and the sentencing hearing transcript. See United States v. Ocasio–Cancel , 727 F.3d 85, 88 (1st Cir. 2013)

. Further, “we recite the [additional] facts as found by the district court [in the evidentiary hearing] to the extent they are not clearly erroneous.”¹ United States v. Beras , 183 F.3d 22, 24 (1st Cir. 1999).

On July 19, 2013, five police officers with the Everett, Massachusetts, Police Department sought to execute a warrant for Bey's arrest that stemmed from a domestic violence dispute involving a firearm. Based on information offered by the victim of that earlier offense, the officers determined that Bey was likely staying at the home of Clarissa Summons in Everett. Bey was barred from being within 100 yards of Summons's residence by an abuse prevention order.

Sergeant Stallbaum was one of the five officers who arrived at Summons's apartment and later testified at the evidentiary hearing. Stallbaum, in testimony credited by the district court, stated that Summons responded to the officers' knocks on her front door.² Asked whether Bey was inside, Summons repeated aloud, “Is Paul Bey here?”, and stated that she was not sure whether Bey was in the residence. According to Stallbaum, Summons then looked to her left and put her finger to her lips in a hushing gesture. She then backed into the apartment while opening the door to the home. The officers took this as both an acknowledgment of Bey's presence in the residence and an invitation to enter.

At this point, the officers entered the home, drew their weapons, and quickly found Bey in a bedroom. Concerned for his own safety, Stallbaum moved a black backpack on a nearby bed away from Bey's reach, later testifying that he noticed that the bag felt heavy and the objects inside were distributed unevenly. The officers handcuffed Bey and asked him, before issuing Miranda warnings, whether the backpack was his. Bey told the officers the bag belonged to Summons. The officers removed Bey from the apartment.

After Bey's departure, several officers stayed behind and “look[ed] around” Summons's apartment. While Stallbaum left to obtain a standard-issue consent to search form, another officer on the scene, Officer McCabe, asked Summons for detailed information regarding her four-year-old son who lived in the home and was present at the time of the arrest. At some point in this conversation, McCabe mentioned contacting the Massachusetts Department of Children and Families (“DCF”). The district court found that McCabe did not, however, refer directly to the possibility of removing Summons's son from the home.

Following that interaction, Stallbaum returned and asked Summons to sign the consent to search form, seeking her permission to search the premises for evidence of the gun used by Bey in the domestic violence offense that had prompted the arrest. Stallbaum told Summons that she was free to withhold her consent, but, if she did, she and her son would have to leave the house for several hours while the police secured the apartment and applied for a search warrant. Stallbaum, at this point, had no knowledge of the earlier conversation between McCabe and Summons regarding the DCF.

Summons signed the consent to search form. She told the officers that the black backpack belonged to her but that she was lending it to Bey. A search of the backpack yielded a loaded 9 millimeter semi-automatic pistol with two magazines of ammunition, a plastic bag containing 15.31 grams of marijuana, a medication container containing 22.5 15-milligram oxycodone pills, and a small electronic scale determined to have cocaine and marijuana residue on it.

On September 24, 2013, on the basis of the evidence found in the backpack, a grand jury issued an indictment accusing Bey of committing six drug and firearm-related offenses. Bey moved to suppress the evidence found in the bag as the fruits of illegal searches of both Summons's residence and the backpack itself. After an evidentiary hearing, the district court denied Bey's motion. See United States v. Bey , 52 F.Supp.3d 299, 300 (D. Mass. 2014)

.

Bey thereafter entered into a plea agreement whereby he agreed to plead guilty to the indictment's six charges.³

Pursuant to this agreement, the government recommended, inter alia, a sentence of seventy months' incarceration and agreed to refrain from seeking an appeal of any sentence imposed below that recommendation. The agreement explicitly preserved Bey's right to mount a later challenge to the district court's denial of his motion to suppress. Otherwise, Bey waived his right to appeal his conviction or the sentence he received, unless it exceeded seventy months. The district court ultimately sentenced Bey to sixty months' incarceration.

II. Analysis

A. Motion to Suppress

Bey argues that the officers' entrance into Summons's residence and subsequent search of the black backpack were “unreasonable searches and seizures” prohibited by the Fourth Amendment. U.S. Const. amend. IV

. The government concedes that the officers entered and searched the residence without a search warrant, but argues that the searches in question fell within several of the recognized exceptions to the Fourth Amendment's warrant requirement. In weighing Bey's challenge to the denial of his motion to suppress, we review the district court's legal conclusions de novo and its findings of fact for clear error. United States v. Vázquez , 724 F.3d 15, 19 (1st Cir. 2013).

1. The Search of Summons's Apartment

It is not entirely clear that Bey has any right to challenge the entry into Summons's apartment. To assert such a right, Bey needs to show that he had a “reasonable expectation of privacy” in Summons's residence, such that he could later challenge the lawfulness of its search and seek to suppress the evidence found within. See United States v. Symonevich , 688 F.3d 12, 18 n. 3 (1st Cir. 2012)

. While Bey was likely, at the time of the arrest, a regular “overnight guest[ ]” staying at Summons's residence with her consent and therefore normally would have been entitled to some measure of privacy, Minnesota v. Olson , 495 U.S. 91, 99, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), his presence in the home was also in clear violation of an abuse protection order, see Bey , 52 F.Supp.3d at 300–01.

Generally, one cannot form a legally recognizable expectation of privacy in a place where one is not legally allowed to be. See generally United States v. Battle , 637 F.3d 44, 49 (1st Cir. 2011)

(collecting cases). Several other courts have specifically held that a defendant cannot claim a reasonable expectation of privacy to the interior of a home where the defendant's very presence is unlawful due to a restraining order. See, e.g. , United States v. Cortez–Dutrieville , 743 F.3d 881, 884–85 (3d Cir. 2014) ; Commonwealth v. Morrison , 429 Mass. 511, 710 N.E.2d 584, 586 (1999). Nevertheless, because the merits of Bey's challenge are easily resolved and because the district court did not consider the issue of Bey's expectation, we assume the reasonableness of that expectation and proceed to consider whether it was honored. See United States v. Weems , 322 F.3d 18, 23 (1st Cir. 2003).

The Fourth Amendment forbids law enforcement from searching a home without a warrant unless the search falls under “one of the ‘few specifically established and well-delineated exceptions' to the warrant requirement.” United States v. Forbes , 181 F.3d 1, 5 (1st Cir. 1999)

(quoting Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ). While the government points to several possibly applicable exceptions, we need consider only the argument that the warrantless entry and search was justified by Summons's consent.

For consent to a search to be valid, the government must prove by a preponderance of the evidence that the consent was uncoerced. See United States v. Vanvliet , 542 F.3d 259, 264 (1st Cir. 2008)

. The presence of coercion is a question of fact based on the totality of the circumstances, including “the consenting party's knowledge of the right to refuse consent; the consenting party's possibly vulnerable subjective state; and evidence of inherently coercive tactics, either in the nature of police questioning or in the environment in which the questioning took place.” United States v. Twomey , 884 F.2d 46, 51 (1st Cir. 1989) (citing Schneckloth , 412 U.S. at 227, 229, 247, 93 S.Ct. 2041 ). “Appellate...