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United States v. Faust

United States Court of Appeals, First Circuit

April 5, 2017

UNITED STATES OF AMERICA, Appellee,
v.
TODD FAUST, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Michael A. Ponsor, U.S. District Judge]

          Myles D. Jacobson, for appellant.

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

          Before Torruella, Lynch, and Barron, Circuit Judges.

          TORRUELLA, Circuit Judge.

         Todd Faust ("Faust") entered a conditional guilty plea to being a felon in possession of ammunition under 18 U.S.C. § 922(g)(1). He contends on appeal that his conviction must be overturned because police obtained the ammunition in violation of the Fourth Amendment and because the statements he made to police during his station house interview were obtained as part of a two-step interrogation technique in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Faust also appeals his sentence on the ground that the district court erroneously concluded that his prior convictions for resisting arrest, Mass. Gen. Laws ch. 268, § 32B(a), and assault and battery on a police officer ("ABPO"), Mass. Gen. Laws ch. 265, § 13A, were violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B) ("ACCA"). For the reasons that follow we affirm in part and remand in part.

         I. Background

         On May 6, 2011, the Massachusetts Palmer District Court issued a warrant for police to search the premises at 220 Pearl Street, Apt. 4-R in Springfield, Massachusetts ("Apartment 4-R"), as well as the persons of Faust and Kristina Leighty ("Leighty"). The warrant application included an affidavit from Sergeant Boucher of the Monson Police Department and several other documents, including several police reports from the Chicopee Police Department.

         These documents set forth that on April 22, 2011, the home of Joseph Barrett was broken into in Monson, Massachusetts (the "Monson robbery"), which resulted in the theft of several items, including a wristwatch, a laptop computer, ten rolls of pennies, a Leatherman tool, and two women's wallets. That same morning, a Monson police officer pulled over a vehicle that Leighty was driving as part of a traffic stop. Faust was a passenger in the vehicle. The officer had the vehicle towed due to a lack of insurance and a revoked registration.[1]

         According to the submitted documents, Leighty and Faust remained in the area until Gregory Charbonneau ("Charbonneau") picked them up and drove them to Apartment 4-R. Charbonneau told police that Leighty gave him $6.50 in rolled pennies as payment for the ride. Additionally, Leighty gifted him a watch that was later identified as one of the items stolen during the Monson robbery.[2]

         Sergeant Boucher's affidavit concluded that based on the timing of Leighty's gift to Charbonneau, he believed that Leighty and Faust were in possession of additional items stolen during the Monson robbery. The search warrant was granted on May 6, 2011.

         Pursuant to the warrant, officers from the Massachusetts State Police, the Springfield Police Department, the Monson Police Department, the Chicopee Police Department, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (collectively, the "officers") executed a search of Apartment 4-R, as well as the persons of Leighty and Faust.

         When the officers entered Apartment 4-R, Leighty told the officers that Faust had fled upstairs. The officers followed Faust into Apartment 5-R. Upon entering the apartment, two officers observed Faust run towards the back door of the apartment and drop a black backpack on the floor. Faust was apprehended as he attempted to flee out the backdoor and was placed in handcuffs. The officers did not advise Faust of his Miranda rights.

         Officer Richard, a Springfield police officer, recovered Faust's backpack, in which he found a loaded 9mm pistol and ammunition for other weapons. Officer Richard asked Faust if he had a right to be in Apartment 5-R and Faust responded that he did not. Faust was held in the back porch of Apartment 5-R while the officers assessed the scene.

         Although the sequence of events is not entirely clear from the record, it is evident that Faust spoke with Officer Richard, Detective Dion of the Chicopee Police Department, and Agent Meehan of the Bureau of Alcohol, Tobacco, Firearms and Explosives while he was on the back porch. According to Officer Richard's testimony, Faust offered, without prompting, to show him where other stolen guns were located after Faust overheard Officer Richard tell other officers at the scene that the gun in Faust's backpack matched one of the guns stolen during the Chicopee robbery.[3] Officer Richard's testimony suggests that this exchange took place before Agent Meehan spoke with Faust. However, Officer McNally, a Springfield police officer at the time, testified that Faust began talking to Officer Richard after Detective Dion and Agent Meehan had spoken with Faust.

         At some point, Detective Dion approached Faust and informed him that the gun found in the backpack matched one of the guns reported stolen during the Chicopee robbery. Detective Dion told Faust that he did not have to speak with him, but inquired if Faust would like to do so. Faust told Detective Dion that he was willing to speak with him.

         Agent Meehan also approached Faust and asked his name, address, and whether he would like to speak with investigators. Agent Meehan told Faust that he was interested in recovering other guns that had been stolen during the Chicopee robbery. Faust again indicated that he was willing to speak with the investigators.

         Subsequently, Officer Richard and Officer McNally took Faust in a police cruiser and drove past the location where Faust claimed that additional guns stolen during the Chicopee robbery were located. Officer Richard and Officer McNally then drove Faust to the Springfield police station.

         Once at the station, Faust was advised of his Miranda rights. Faust confirmed that he understood his rights and that he wished to speak with the interviewing officers. During his interview, Faust admitted to his involvement, alongside Leighty and two other individuals, in the Chicopee robbery. Faust also admitted to handling the 9mm pistol found in his possession and stated that his fingerprints would likely be found on it.

         Faust sought to suppress the statements he made during his police station interrogation, a motion which the district court denied. In accordance with the ACCA, the district court sentenced Faust to 180 months of imprisonment. During sentencing, Faust objected to his classification as an armed career criminal on the ground that neither his conviction for resisting arrest nor for ABPO qualify as ACCA predicates.

         This timely appeal followed.

         II. Probable Cause to Search

         When reviewing the denial of a motion to suppress, "we view the facts in the light most favorable to the district court's ruling on the motion, and we review the district court's findings of fact and credibility determinations for clear error." United States v. Fermin, 771 F.3d 71, 76-77 (1st Cir. 2014) (quoting United States v. Camacho, 661 F.3d 718, 723 (1st Cir. 2011)) (internal citations and quotation marks omitted). "[W]e review conclusions of law de novo, giving plenary review to the district court's application of law to facts, reasonable-suspicion determinations, and ultimate decision to deny the motion." Id. at 77 (citing Camacho, 661 F.3d at 724). However, "we afford an ample amount of deference to the issuing magistrate's finding of probable cause" when reviewing if an affidavit supports the issued warrant. United States v. Dixon, 787 F.3d 55, 58 (1st Cir. 2015) (citations omitted). As a result, we will reverse a finding of probable cause "only if we see no substantial basis for concluding that probable cause existed." Id. at 59 (quoting United States v. Ribeiro, 397 F.3d 43, 48 (1st Cir. 2005)). Probable cause is present if "the facts and circumstances as to which police have reasonably trustworthy information are sufficient to warrant a person of reasonable caution in the belief that evidence of a crime will be found." United States v. Silva, 742 F.3d 1, 7 (1st Cir. 2014) (quoting Robinson v. Cook, 706 F.3d 25, 32 (1st Cir. 2013)).

         "A warrant application must demonstrate probable cause to believe that (1) a crime has been committed-the 'commission' element, and (2) enumerated evidence of the offense will be found at the place to be searched-the so-called 'nexus' element." United States v. Rodrigue, 560 F.3d 29, 32-33 (1st Cir. 2009) (quoting Ribeiro, 397 F.3d at 48). To satisfy the nexus element, the warrant application "must give someone of 'reasonable caution' reason to believe that evidence of a crime will be found at the place to be searched." Ribeiro, 397 F.3d at 49 (citation omitted).

         Faust contends that Sergeant Boucher's affidavit failed to establish probable cause to search his person. Specifically, he argues there was no probable cause to believe that the items listed in the warrant could be found on him.[4]

         As the district court observed, Sergeant Boucher's affidavit stated that: (1) Faust and Leighty had been detained for a traffic violation on April 22, 2011, the same day as the Monson robbery, which resulted in their vehicle being towed; (2) on that same day Charbonneau picked up both Faust and Leighty after the vehicle was towed; (3) Leighty gave Charbonneau a wristwatch that was later identified as stolen during the Monson robbery; (4) the items stolen during the Monson robbery were "the sort of items that a person would carry on their person." Moreover, Leighty gave Charbonneau $6.50 in rolled pennies as payment for giving her and Faust a ride. We find that the affidavit adequately satisfied the commission element. The fact that Leighty and Faust were detained on the day of the Monson robbery and had items from that robbery in their possession supports a conclusion that evidence of the Monson robbery would be found on Faust's person. The facts presented in a search warrant application must be such that they permit a man of reasonable caution to conclude that "evidence of a crime will be found." See United States v. Soto, 799 F.3d 68, 84 (1st Cir. 2015) (quoting United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999)). Accordingly, we find that there was ample probable cause to search Faust.

          To the extent Faust is arguing that the officers could not follow him into Apartment 5-R, we note that there is a recognized exception to the warrant requirement when police are faced with the "threatened escape by a suspect." Bilida v. McCleod, 211 F.3d 166, 171 (1st Cir. 2000) (citing McCabe v. LifeLine Ambulance Serv., Inc., 77 F.3d 540, 545 (1st Cir. 1996)). Here, the police were executing the warrant when Leighty informed them that Faust had fled upstairs. The police immediately pursued Faust into Apartment 5-R where they observed him attempting to escape through the backdoor. Thus, even if the search warrant could not establish that the fruits of the Monson robbery could be found inside Apartment 5-R, the police could enter Apartment 5-R in pursuit of Faust.[5]

         Accordingly, we find that the district court properly denied Faust's motion to suppress.

         III. Miranda

         Faust posits that his post-Miranda statements at the police station are also subject to suppression because he was subjected an impermissible two-step interrogation tactic.

         A failure to administer Miranda warnings, "unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, [does not] so taint[] the [later] investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period." United States v. Jackson, 544 F.3d 351, 360 (1st Cir. 2008) (quoting Oregon v. Elstad, 470 U.S. 298, 309 (1985)) (alteration in original). Thus, in the absence of coercion or improper tactics by law enforcement in obtaining an initial statement, a subsequent statement is admissible if the defendant was advised of his Miranda rights and knowingly and voluntarily waived those rights. Elstad, 470 U.S. at 318.

         However, suppression may be proper when police deliberately employ a two-step interrogation tactic designed to circumvent Miranda warnings. United States v. Verdugo, 617 F.3d 565, 574-75 (1st Cir. 2010) (citing Missouri v. Seibert, 542 U.S. 600, 605-06 (2004) (plurality opinion)). The Supreme Court addressed the use of such a tactic in Seibert. The facts at issue in that case involved a defendant who was taken to the police station and subjected to questioning for thirty to forty minutes without the benefit of Miranda warnings. Seibert, 542 U.S. at 604-05. Once the defendant made a crucial admission, she was given a twenty-minute break, after which she was provided Miranda warnings. The defendant was then confronted with her pre-warning statements in order to get her to repeat her confession. Id. at 605.

         A four justice plurality of the Court held that, under these circumstances, the Miranda warnings were ineffective, thereby rendering the defendant's post-Miranda statements inadmissible. Id. at 611-14. The plurality focused on the circumstances surrounding the contested statements. Specifically, the plurality considered: (1) "the completeness and detail of the questions and answers in the first round of interrogation"; (2) "the overlapping content of the two statements"; (3) "the timing and setting of the first and the second [interrogations]"; (4) "the continuity of police personnel"; and (5) "the degree to which the interrogator's questions treated the second round as continuous with the first." Id. at 615.

         Justice Kennedy, who provided the fifth vote in favor of the judgment, advanced a narrower test.[6] Under Justice Kennedy's approach the deliberate use of a two-step interrogation creates a presumptive taint. Id. at 622 (Kennedy, J., concurring). However, when police do not employ a two-step tactic, "[t]he admissibility of postwarning statements should continue to be governed by the principles of Elstad . . . ." Id.

         Here, the result is the same under either approach. Faust's contention withers under the plurality's analysis. The testimony provided at the evidentiary hearing does not support a conclusion that the questions posed in Apartment 5-R formed part of a larger continuous investigation that persisted at the police station. The record illustrates that Faust was read his rights at the police station and voluntarily waived them. Further, there is no evidence that police leveraged Faust's post-Miranda statements by utilizing any of his pre-Miranda responses. In sum, we agree with the district court's conclusion that Faust was not submitted to a two-step interrogation because the timing and settings of the pre-Miranda and post-Miranda questioning were different; the type of questions and their degree of detail varied greatly; and the pre-Miranda and post-Miranda questioning were not part of the same continuum.

         We reach an identical result under Justice Kennedy's test. Nothing in the record reveals the use of a deliberate two-step strategy geared towards leveraging Faust's confession. In the absence of such a tactic, Faust's station house statements are admissible if he was provided with Miranda warnings and he voluntarily and knowingly waived his rights. See Elstad, 470 U.S. at 318. As mentioned above, there is no indication that the officers employed a two-step tactic designed to circumvent Miranda or leverage Faust's confession. Moreover, the record confirms that Faust was advised of his Miranda rights and that he knowingly and voluntarily waived them. As such, his post-warning statements are not subject to suppression.

         Faust also contends that the district court erred when it found that Faust offered to speak to Officer Richard before Detective Dion and Agent Meehan approached him. As we pointed out earlier, the record is unclear as to the precise sequence of events after Faust's apprehension in Apartment 5-R. Due to this lack of clarity, we cannot conclude that the district court's conclusion was clear error. See In re Brady-Zell, 756 F.3d 69, 72 (1st Cir. 2014) ("[I]t is apodictic that where the facts can support two plausible but conflicting interpretations of a body of evidence, the factfinder's choice between them cannot be clearly erroneous." (citations omitted)).[7]

         IV. Sentence Enhancement Under the ACCA

         The district court found that Faust was subject to a fifteen-year enhancement of his sentence under the ACCA. The ACCA enhancement applies when a defendant is convicted of being a felon in possession of a firearm and "has three previous convictions . . . for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). For our purposes, the relevant definition of "violent felony" under the ACCA is "any crime punishable by imprisonment for a term exceeding one year . . . that--(i) has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 924(e)(2)(B).

         Faust has two uncontested predicate convictions that qualify as "serious drug offense[s]" and two possible violent felonies that are at issue in this appeal: a conviction for resisting arrest and two convictions arising out of the same conduct for assault and battery on a police officer (ABPO).[8]

         The district court found that Faust's convictions for ABPO and resisting arrest both counted as predicate convictions. In so finding the judge explicitly stated that he felt bound by First Circuit precedent: United States v. Carrigan, 724 F.3d 39 (1st Cir. 2013) and United States v. Weekes, 611 F.3d 68 (1st Cir. 2010) with respect to resisting arrest, and United States v. Dancy, 640 F.3d 455 (1st Cir. 2011) for ABPO. Applying the ACCA enhancement, the district court sentenced Faust to fifteen years of imprisonment, though he specifically stated that he believed "the 15-year sentence in this case is excessive" and that he "wouldn't be imposing a 15-year sentence if [he] wasn't required to."

         Because Carrigan and Weekes have been called into question by the Supreme Court's recent case of Mathis v. United States, 136 S.Ct. 2243 (2016), and Dancy relied upon a portion of 18 U.S.C. § 924(e) that has since be deemed unconstitutionally vague, Johnson v. United States ("Johnson II"), 135 S.Ct. 2551, 2563 (2015), we must return to the questions previously determined by those cases: do the Massachusetts offenses of resisting arrest and ABPO qualify as violent felonies under the ACCA? We review de novo "[w]hether a prior conviction qualifies as an ACCA predicate." United States v. Whindleton, 797 F.3d 105, 108 (1st Cir. 2015) (citing Carrigan, 724 F.3d at 48).[9]

         A. Applicable Law

         1. Step One: ...


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