FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Michael A. Ponsor, U.S. District Judge]
D. Jacobson, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for
Torruella, Lynch, and Barron, Circuit Judges.
TORRUELLA, Circuit Judge.
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.
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
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
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.
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.
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.
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
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.
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. 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.
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.
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
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.
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.
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.
timely appeal followed.
Probable Cause to Search
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)).
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).
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
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.
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.
we find that the district court properly denied Faust's
motion to suppress.
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.
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.
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.
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.
Kennedy, who provided the fifth vote in favor of the
judgment, advanced a narrower test. 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.
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.
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.
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)).
Sentence Enhancement Under the ACCA
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).
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
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."
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).
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