United States v. John
| Decision Date | 03 February 2023 |
| Docket Number | 21-1862 |
| Parties | UNITED STATES, Appellee, v. HOWARD JOHN, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Indira Talwani, U.S. District Judge]
Samia Hossain for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.
Before Kayatta, Lynch, and Thompson, Circuit Judges.
Howard John pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), reserving his right to contest on appeal the district court's denial of his motion to suppress evidence that he possessed an AR-15 assault rifle and many rounds of ammunition.
In a thoughtful opinion, the district court rejected his Fourth Amendment claim because John had not shown an objectively reasonable privacy interest in the items seized from a case John had left in the home of Nichelle Brison, his former domestic partner, and their six-year-old son. John no longer lived in the home and had been told by Brison that he was unwelcome, but returned there unannounced on November 10 2018, without her permission to do so or her permission to have left the unlocked case with weapons there. The police learned these facts when they responded to her call for help after John had entered, assaulted her, and left both her and the boy wounded. The police retrieved the case, which had blood on it, from the kitchen table. We reject John's three arguments that the ruling was error and affirm. We agree with the district court that John had no objectively reasonable expectation of privacy in the contents of the case.
We take the facts from the district court's findings in its February 1, 2021, memorandum and order denying John's motion to suppress, supplemented "with the addition of undisputed facts drawn from the suppression hearing." United States v. Cruz-Mercedes, 945 F.3d 569, 571 (1st Cir. 2019) (quoting United States v. Hernandez-Mieses, 931 F.3d 134, 137 (1st Cir. 2019)) . We note that John did not contest any of the district court's findings.
Just after midnight on November 10, 2018, Somerville Police Officers Cleary, Ramirez, and Sousa responded to a domestic disturbance call made by Brison at 3 Wesley Park, Apartment #202, Somerville, Massachusetts. Officer Sousa noticed blood on the apartment's door and on the floor immediately outside the unit. He knocked on the door multiple times and announced himself as Somerville Police. The officers heard a male voice from inside the apartment, asking Officer Sousa to "hold on." Approximately a minute later, after further knocks and demands from the officers, John opened the door, his hand bleeding. Officers Sousa and Ramirez recognized John from a previous domestic disturbance call at the same address in June 2018 involving John and Brison, in which Officer Sousa had run John's criminal history and learned he had previous firearms offenses on his record. Officer Sousa asked John to step into the hallway; John complied.
While Officers Sousa and Cleary waited with John in the hallway and called for medical assistance, Officer Ramirez entered the apartment. Inside, Officer Ramirez found Brison and her six- year-old son. Brison was bleeding from her face, and she stated that John had struck her face with his hand. The child was bleeding from his left hand. When Officer Ramirez asked the child about his injury, he pointed to John and said, "[H]e cut me." The child also said, without prompting: "He has a gun," referring to John. Officer Ramirez asked where the gun was located, and the child responded, "[O]n his back." Officer Ramirez signaled to his colleagues in the hallway to handcuff John. The officers frisked John and did not find a gun. They asked John if he had a license to carry a firearm, and he responded that he did not. They then arrested John for domestic assault and battery and took him to the police station. Around this time, Lieutenant deOliveira and other assistance arrived.
After John was taken to the police station, Officer Sousa entered the apartment and spoke with Brison. Brison explained that John had arrived unannounced at her apartment at approximately 11:30 PM, saying he was there to "gather some of his belongings." John and Brison argued over his unannounced visit because "he did not live there anymore." Brison reported that John slapped and choked her until their child "interceded." John then removed bags from the apartment, including a black backpack. John returned to the apartment. Brison called the police, but John hit the phone out of her hand and punched her in the mouth, so all the dispatcher could hear was "a male and female yelling and screaming" and the female yelling "get off me" before the line went dead. Brison armed herself with a knife, which John grabbed from her, cutting himself in the process. Their son was cut and hurt while trying to intervene. The violence ended when a neighbor knocked on the door, and the police arrived soon thereafter. Brison told the officers that she did not own any firearms, and if there were any firearms in the apartment, they belonged to John.
Officer Sousa also spoke with Brison's six-year-old son, who said that he had seen a gun with something yellow on it in John's black backpack. The child also told Officer Ramirez that there was "a suitcase with guns" in the apartment.
Brison, according to Officer Sousa's report, "asked [the officers] to locate and remove any firearms in the apartment because of her concern for the safety of her young son and her own safety." She signed a form consenting to Lieutenant deOliveira and Officer Ramirez making "a complete search of the above described apartment." The officers then opened the black case that John had left on the kitchen table near the front door. Brison had never seen the black case before that night when she observed John pull the case out from underneath an armoire in her apartment. John produced no evidence that the case was locked or even had a lock. The black case was covered with "what appeared to be fresh blood," and contained the lower receiver of an AR-15 rifle, two magazines loaded with 30 rounds of 5.56mm ammunition, three rifle scopes, two clips of 7.62mm ammunition, and other items.
Officers then searched John's car. The officers "believed that there was probable cause to believe that the rest of the rifle could be inside Mr. John's vehicle" based on the "the lower receiver of the rifle [found inside the case] . . . coupled with the fact that Mr. John had just removed a backpack from the apartment, and placed it in his vehicle." The child had also told police that the black backpack contained a gun. In the car's trunk, Officer Sousa found a black backpack. Inside the backpack was a yellow glove and the upper receiver and barrel of an AR-15 rifle.
The Officer in Charge that night searched the police database for the rifle's serial number and learned that it had been reported stolen in Kittery, Maine. The Kittery Police Department informed the Somerville police that other firearms remained missing from the same firearms burglary. Officer Cleary and his colleague then returned to Brison's apartment and, with her consent, performed a second search and found some loose 9mm ammunition but no additional firearms.
Relying only on the Somerville police incident report and the police reports contained therein, John moved to suppress the evidence resulting from the search of his black case, including, as fruit of an unlawful search, evidence from the subsequent search of his vehicle, the database query, the second residential search, and his custodial statement. John argued that Brison's consent to search the case was insufficient because she had acknowledged to the Somerville police that the case did not belong to her. John also argued that, if the evidence from the search of the case was suppressed, there would have been insufficient information to support probable cause for the subsequent search of his car. In a later filing supplementing the motion, John asserted that he had a subjective and objectively reasonable expectation of privacy in the black case because he had previously lived in Brison's apartment, kept the case private, and was in the process of removing it from the apartment.
The government filed an opposition to John's suppression motion, arguing that John failed to establish a reasonable expectation of privacy, and, alternatively, that the search was reasonable under the exigent circumstances, emergency aid, and plain view doctrines, and that suppression was not warranted pursuant to the inevitable discovery doctrine.
After holding a hearing, the district court denied John's suppression motion, concluding that John's expectation of privacy in his black case was not objectively reasonable United States v. John, No. 1:19-cr-10068, 2021 WL 327472, at *5 (D. Mass. Feb. 1, 2021) (citation omitted). The district court also declined to suppress the evidence found later. John pleaded guilty, preserving his right to appeal the denial of his motion to suppress, and the district court sentenced him to time served and three years' supervised release. This timely appeal followed.
When reviewing a district court's denial of a motion to suppress, appellate courts "assess factual findings for clear error and evaluate legal issues de novo." United States v. Pimentel, 26 F.4th 86, 90 (1st Cir. 2022). "In...
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