United States v. Moran, 112719 FED1, 18-1876

Docket Nº:18-1876
Opinion Judge:BARRON, CIRCUIT JUDGE.
Party Name:UNITED STATES OF AMERICA, Appellee, v. BRYAN MORAN, Defendant, Appellant.
Attorney:Mary A. Davis, with whom Tisdale & Davis, P.A. was on brief, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.
Judge Panel:Before Lynch, Selya, and Barron, Circuit Judges.
Case Date:November 27, 2019
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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UNITED STATES OF AMERICA, Appellee,

v.

BRYAN MORAN, Defendant, Appellant.

No. 18-1876

United States Court of Appeals, First Circuit

November 27, 2019

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

Mary A. Davis, with whom Tisdale & Davis, P.A. was on brief, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

Before Lynch, Selya, and Barron, Circuit Judges.

BARRON, CIRCUIT JUDGE.

Bryan Moran ("Moran") pleaded guilty on May 9, 2018 to possession with intent to distribute fentanyl, in violation of 21 U.S.C. § 841(a)(1), in the United States District Court for the District of Massachusetts. He reserved his right to challenge, on appeal, the denial of his motion for reconsideration of the denial of his motion to suppress certain evidence -- specifically, fentanyl obtained from within closed black garbage bags that were found in his sister's storage unit during a warrantless search. He now contends that his conviction must be vacated because the District Court erred in denying that motion for reconsideration. The District Court based its ruling on the ground that a person with apparent authority to consent to that search -- namely, Moran's sister -- gave it, even if she did not have actual authority to do so. Because we agree with Moran that the government failed to meet its burden to show that his sister had either actual or apparent authority to consent to that search, we reverse the denial of his motion for reconsideration, vacate his conviction, and remand the case.

I.

Just over one week before the search in question, Moran stored several closed, opaque, black plastic garbage bags that contained some of his effects in a storage unit that belonged to his sister, Alysha Moran ("Alysha").1 A week later, after Moran was arrested and while he was being held at the Middlesex County Billerica House of Corrections on a separate charge, he learned that Alysha's storage unit needed to be emptied. He asked her -- on a recorded phone call -- to move his bags.

A detective from the police department for the Town of Wilmington, Massachusetts was informed of the call. That detective and officers from the police department for the Town of North Reading, Massachusetts then went to Alysha's apartment and obtained her oral consent to conduct a search of her apartment. At some point after she consented to the search of her apartment, Alysha signed a "Consent For Search" form that the law enforcement personnel conducting the search had provided to her. This form authorized law enforcement authorities to "conduct a search of [her] premises/vehicle" -- specifically, of her apartment, her car, and her storage unit -- and "to take possession of any items found which are relevant to the police investigation." In signing the form, Alysha certified that she was consenting to the search "voluntarily, without threats of promises of any kind."

Law enforcement authorities then searched Alysha's car and her storage unit. The District Court found that, when the authorities that conducted the search of Alysha's storage unit opened it, "Alysha differentiated the contents of the unit, stating the black bags belonged to Moran while the boxes containing Christmas decorations belonged to her." The District Court also found that "[a]lthough it is unclear whether Alysha gave express consent to search Moran's bags, it is undisputed that she did not limit her written consent or object to any portion of the search."

Before law enforcement authorities searched the contents of the storage unit, Alysha left the premises to pick up her child. The law enforcement authorities who conducted the search removed the closed garbage bags that are at issue from the storage unit. A police canine was brought to the scene to check for drugs and did not alert when it sniffed the bags. (The canine was not trained to detect fentanyl.) The authorities proceeded to open the bags and search their contents, and find fentanyl inside them. Alysha later stated in an interview with a detective from the Town of Wilmington and an agent from the United States Drug Enforcement Administration that she did not know the bags contained fentanyl.

Moran was indicted for possession with intent to distribute fentanyl, in violation of 21 U.S.C. § 841(a)(1). He filed a motion to suppress the fentanyl as the fruit of an illegal search of the bags. The District Court denied the motion to suppress on the ground that, although Moran had a reasonable expectation of privacy in those bags, the law enforcement authorities did not need a warrant to search them because Alysha had actual authority to consent to their search and voluntarily had given such consent.

Moran filed a motion for reconsideration of the District Court's denial of the motion to suppress. In denying the motion for reconsideration, the District Court declined to reach the issue of whether Alysha had actual authority to consent to the search of the bags. The District Court found instead that Alysha had apparent authority to consent to their search. This appeal followed.

II.

The Fourth Amendment of the federal Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "The Fourth Amendment generally requires that the government obtain a warrant based on probable cause before conducting a search." United States v. Hood, 920 F.3d 87, 90 (1st Cir. 2019) (citing Katz v. United States, 389 U.S. 347, 362 (1967)...

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