FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. Indira Talwani, U.S. District Judge
Christine DeMaso, Assistant Federal Public Defender, for
Randall E. Kromm, Assistant United States Attorney, with whom
William D. Weinreb, Acting United States Attorney, was on
brief, for appellee.
Torruella, Kayatta, and Barron, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
police arrested Yrvens Bain after he emerged from a
multi-family building in Malden, Massachusetts. During the
search incident to that arrest, they found a set of keys in
his possession. The police tried these keys on the front door
of the multi-family building and on the doors to three
apartments inside--one on the first floor, two on the second
floor. The keys opened the door to one of the units on the
second floor. The police included this information in an
application for a warrant to search that unit. The warrant
issued, and the search produced a firearm and over twenty-six
grams of heroin mixed with fentanyl. Bain moved to suppress
that evidence. He argued, among other things, that the
officers conducted an unlawful search by turning his key in
the locks to identify the unit to search, and that there was
no probable cause to issue a warrant to search the unit
without that identification.
district court denied Bain's motion. The court also
subsequently denied his motion in limine to exclude a
credit-card-making machine found during the search. At trial,
a jury convicted Bain on two counts of distribution of
heroin, see 21 U.S.C. § 841(a)(1), one count of
possessing heroin with intent to distribute, see
id., and one count of possessing a firearm and
ammunition after a conviction for a felony punishable by over
one year in prison, see 18 U.S.C. § 922(g)(1).
At sentencing, the district court applied the fifteen-year
mandatory minimum sentence under the Armed Career Criminal
Act (ACCA), see id. § 924(e). Bain appeals the
rulings on his motion to suppress, his motion in limine, and
his sentence. While we agree with Bain that the officers
conducted an unlawful search by testing the key in the lock
of the unit in which he was staying, we nevertheless affirm
the denial of the motion to suppress because in searching the
apartment the officers relied in good faith on the
intervening warrant. We also affirm Bain's conviction and
Connerney, a detective in the Arlington, Massachusetts Police
Department and a Task Force Agent with the Drug Enforcement
Administration (DEA), signed both affidavits supporting the
search warrant application. We describe the relevant
information contained in those affidavits.
early 2014, the DEA began investigating Bain. At the time,
Bain had four prior convictions for "drug trafficking
offenses." All four involved cocaine and the most recent
had occurred in 2007. By 2014, Bain's six-year prison
sentence for that conviction had ended and his five-year
probation term had just begun.
of the investigation, a cooperating witness made two
controlled buys from Bain. In connection with both controlled
buys, officers searched the cooperating witness beforehand,
provided him with a recording device and the cash used to
purchase the drugs, and retrieved the drugs from him
cooperating witness made the first controlled buy on February
26, 2014. After texting Bain to request $100 worth of heroin,
the cooperating witness picked Bain up at an apartment
complex in Waltham, Massachusetts, next to which Bain's
car was parked. The cooperating witness paid $100 in cash
for a baggie containing 0.80 grams of a mixture of heroin and
days later, police responded to a report of a fight in
progress at the same apartment complex in Waltham. Bain had
been living in his brother's apartment in that complex,
the two men had been in an argument, and Bain had punched his
brother. These events precipitated an assault and battery
charge against Bain, which landed him in police custody until
March 17. When Bain was released, he informed his probation
officer that he planned to live at his mother's residence
in Arlington. But Connerney never saw Bain at that residence
and never saw his car parked outside.
after Bain's release, he texted the cooperating witness,
saying, "I was away for awhile but now I'm back hit
me up everything's good." After the cooperating
witness again requested $100 worth of heroin, Bain directed
him to "Waite st." in "Malden." Bain once
again got into the cooperating witness's car and sold him
a baggie containing heroin for $100 in cash. The cooperating
witness drove around the block and let Bain out of the car on
several subsequent occasions, Connerney and other officers
involved in the investigation observed Bain's car parked
on Webster Street in Malden, near the intersection with
Laurel Street. On March 28 at 2:35 P.M., officers in the
Malden Police Department observed Bain park on Webster
Street, walk to Laurel Street, and enter 131 Laurel Street.
Roughly ten hours later, at 12:30 A.M. on March 29, Connerney
observed Bain's car still parked on Webster Street.
days later, with a signed criminal complaint in hand,
officers went to 131 Laurel Street to arrest Bain. They saw
Bain emerge through the front door of 131 Laurel Street, walk
to his car around the corner on Webster Street, and get
inside. As agents approached the car, Bain locked his doors
and swallowed something. Agents removed him from the car,
placed him under arrest, conducted a search incident to
arrest, and seized credit cards and a set of keys from his
agents used the keys they had seized from Bain to open the
front door of 131 Laurel Street. Connerney described the
building located at 131 Laurel Street as follows:
131 Laurel Street is a two and a half story home located near
the intersection of Laurel Street and Webster Street in
Malden, Massachusetts. A hedge surrounds the front yard. . .
. The main entrance is a large wooden door with a circular
window and is accessed by a set of stairs rising from a
sidewalk running alongside Laurel Street. At the front door,
there are four black mail boxes, two on each side of the
door. [Unit D is located on the second floor . . . .
[Unit] D is accessed by walking up the main staircase to the
second floor landing. The door is on the right hand side. It
is the only door on the right hand side of the second floor
name was not on any of the four mailboxes.
entering the building, the agents "tried the keys in one
door on the first floor and two doors on the second
floor." The keys fit the door to unit D. They entered
unit D and conducted a "protective sweep to make sure no
one else was inside." The unit was empty. During the
protective sweep, agents observed mail addressed to "131
Laurel Street, Apartment D, Malden, Massachusetts, " a
parking ticket issued to Bain's car on a chair in one of
the bedrooms, and a safe in the same bedroom.
with the information that the keys seized from Bain opened
the main door to 131 Laurel Street and the door to unit D,
the officers sought a warrant to search unit D. In addition
to the information summarized above, the affidavit used to
obtain the warrant contained a series of statements, based on
Connerney's training and experience, establishing that it
was reasonable to expect that Bain kept drugs, tools of the
trade, cash, and records in the place where he resided.
review of the affidavit, a federal magistrate judge issued a
warrant to search unit D for a long list of items, including
records relating to the purchase and sale of controlled
substances, cash derived from the sale of controlled
substances, documents relating to the control of unit D,
photographs of relevant property, and personal electronic
devices. The subsequent search produced several key pieces of
evidence against Bain. In one of the bedrooms, the police
found a parking ticket for Bain's car (the same one they
saw during their warrantless entry into the unit), $300 in
cash, and, in a trash can, used latex gloves and sandwich
bags with the corners torn off. In a closet of that bedroom,
they found several cards with Bain's name on them: a
Massachusetts driver's license, a social security card,
an identification card, an auto insurance card, a MassHealth
card, and a AAA card. They also found a box in the closet,
originally for size twelve Timberland shoes, that contained
plastic bags, latex gloves, a digital scale, a bag containing
26.8 grams of a mixture of heroin and fentanyl, a razor
blade, assorted pills, a handgun with an obliterated serial
number, and a magazine containing bullets. In the closet of
the other bedroom, police found a credit-card-making machine
and boxes of blank cards, men's clothing, a pair of
Timberland boots, several boxes of sneakers (sizes eleven to
twelve), and sneakers containing around $7000 in cash. Five
of the $20 bills in the shoes came from the government funds
that the cooperating witness had used in the March 21
controlled buy. At trial, the government submitted evidence
that Bain wore size twelve shoes.
district court denied Bain's motion to suppress both the
fact that the keys found in his possession opened the door to
unit D and the items found during the search pursuant to the
warrant. See United States v.
Bain, 155 F.Supp.3d 107, 125 (D. Mass. 2015). In so
doing, the court agreed with Bain that the turning of the key
in the lock of unit D and the ensuing "protective
sweep" were unreasonable searches. See id. at
120-23. Nevertheless, finding that the officers relied in
good faith on precedent when turning the key, see
id. at 121-22, the court took account of the fact that
the key fit the lock of unit D when concluding that there was
probable cause for a warrant to search unit D, see
id. at 124. Bain challenges that ultimate ruling, and
the government challenges the predicate ruling that testing
the key in the lock was an unreasonable search. The government
also argues, as a threshold matter, that Bain lacked
sufficient connection to unit D to challenge the search.
will explain, we find that Bain did have a sufficient
connection with unit D to mount an unfettered challenge to
the search of that unit. In a matter of first impression in
this circuit, we also find that the turning of the key in the
lock of unit D was an unreasonable, warrantless search
unsupported by any clear precedent, and that without the
information obtained by turning the key, there was no
probable cause to issue a warrant to search unit D.
Nevertheless, as we will also explain, because the officers
were entitled to rely in good faith on the warrant, the
information secured in executing that warrant need not have
start by briefly describing the tests used to determine
whether a search has occurred within the meaning of the
Fourth Amendment. Under the reasonable expectations test
described in Justice Harlan's concurring opinion in
Katz v. United States, 389 U.S.
347 (1967), a search occurs whenever the government intrudes
upon any place in which a person has a "reasonable
expectation of privacy." Id. at 360 (Harlan,
J., concurring). There are two steps involved in applying
this test. "First, we ask whether the individual, by his
conduct, has exhibited an actual expectation of privacy; that
is, whether he has shown that he '[sought] to preserve
[something] as private.'" Bond v.
United States, 529 U.S. 334, 338 (2000) (alterations
in original) (quoting Smith v.
Maryland, 442 U.S. 735, 740 (1979)). "Second,
we inquire whether the individual's expectation of
privacy is one that society is prepared to recognize as
Supreme Court has also employed common-law trespass concepts
to determine when a search has occurred. Under the common-law
trespassory test described in Florida v.
Jardines, 133 S.Ct. 1409 (2013), "[w]hen
'the Government obtains information by physically
intruding' on persons, houses, papers, or effects, 'a
"search" within the original meaning of the Fourth
Amendment' has 'undoubtedly occurred.'"
Id. at 1414 (quoting United States
v. Jones, 565 U.S. 400, 404-05 (2012));
see also Grady v. North Carolina,
135 S.Ct. 1368, 1370 (2015) (per curiam). This test
supplements, rather than replaces, the Katz test.
See Jardines, 133 S.Ct. at 1417 ("The
Katz reasonable-expectations test 'has been
added to, not substituted for, ' the
traditional property-based understanding of the Fourth
Amendment, and so is unnecessary to consider when the
government gains evidence by physically intruding on
constitutionally protected areas." (quoting
Jones, 565 U.S. at 409)).
Jardines itself, the Supreme Court employed the
common-law trespassory test to determine that a physical
intrusion into the "curtilage" of a home
constituted a search under the Fourth Amendment even though
no intrusion into the home had occurred. See id. at
1417-18. The curtilage is the area "immediately
surrounding and associated with the home, " and it is
"part of the home itself for Fourth Amendment
purposes." Id. at 1414 (quoting Oliver
v. United States, 466 U.S. 170, 180
(1984)). "This area around the home is 'intimately
linked to the home, both physically and psychologically,
' and is where 'privacy expectations are most
heightened.'" Id. at 1414-15 (quoting
California v. Ciraolo, 476 U.S.
207, 213 (1986)).
Jardines, a physical intrusion into a protected area
that results in the acquisition of information only fails to
constitute a search if that intrusion is permitted by a
license. "[T]he knocker on the front door is treated as
an invitation or license to attempt an entry, justifying
ingress to the home by solicitors, hawkers and peddlers of
all kinds." Id. at 1415 (quoting
Breard v. Alexandria, 341 U.S.
622, 626 (1951)). "This implicit license typically
permits the visitor to approach the home by the front path,
knock promptly, wait briefly to be received, and then (absent
invitation to linger longer) leave." Id. The
police may take advantage of this license to "approach a
home and knock" without a warrant. Id. at 1416.
However, "[t]he scope of a license--express or
implied--is limited not only to a particular area but also to
a specific purpose." Id. The police behavior
considered in Jardines--"introducing a trained
police dog to explore the area around the home in hopes of
discovering incriminating evidence, "
id.--exceeded the implicit license. The Court
provided other examples of behavior that would also exceed
the license: "exploring the front path with a metal
detector" or "marching [a] bloodhound into the
garden before saying hello and asking permission."
government contends that Bain lacks full Fourth Amendment
rights in unit D. The parties refer to this issue as one of
"standing" to assert Fourth Amendment rights.
Although courts sometimes use this nomenclature, see
United States v. Stokes, 829 F.3d 47,
51 (1st Cir. 2016), the Supreme Court has made clear that
"definition of [Fourth Amendment] rights is more
properly placed within the purview of substantive Fourth
Amendment law than within that of standing, "
Rakas v. Illinois, 439 U.S. 128,
140 (1978); see also Stokes, 829 F.3d at 51 n.7.
was staying in unit D with his girlfriend, who rented the
unit. The district court found that Bain "was, at the
least, an overnight guest" in unit D. Bain, 155
F.Supp.3d at 115. Under Supreme Court precedent, Bain's
"status as an overnight guest is alone enough to show
that he had an expectation of privacy in the home that
society is prepared to recognize as reasonable."
Minnesota v. Olson, 495 U.S. 91,
96-97 (1990). In short, Bain's status as an overnight
guest endowed him with Katz's protection of a
reasonable expectation of privacy in the unit.
government nevertheless contends that Bain's interest in
the unit as an overnight guest, while sufficient to secure a
reasonable expectation of privacy within the unit, falls
short of the type of property ownership that would allow him
to complain of a trespass within the unit or its curtilage.
Hence, argues the government, an extension of Fourth
Amendment interests derived from Jardines's
common-law trespassory test offers no protection to Bain as
an overnight guest.
reject this argument that a search defined in part by an
invasion of property rights is a search only as to persons
who could maintain a common law trespass claim. The property
rights test applied in Jones and Jardines
was foreshadowed by Justice Scalia's concurring opinion
in Minnesota v. Carter. 525 U.S.
83, 92-97 (1998) (Scalia, J., concurring). Justice Scalia
stated that he considered Olson's extension of
Fourth Amendment rights to an overnight guest compatible with
the property-based test because "it is plausible to
regard a person's overnight lodging as at least his
'temporary' residence." Id. at 96-97.
He explained that this conclusion is supported by both
history and common understanding. See id. at 95-96
(stating that "[p]eople call a house 'their'
home when legal title is in the bank, when they rent it, and
even when they merely occupy it rent free--so long as they
actually live there"). We agree with this reasoning. If
a living unit is a person's home under Olson,
then the person's Fourth Amendment protections are not
diminished by the temporary nature of the person's
to the extent that the key-turning is deemed a Fourth
Amendment search because it constituted a trespassory
invasion under Jones and Jardines--a
subject that we will next discuss--we see no reason not to
apply the amendment's protections to an overnight guest
just as we would to a renter or owner.
concluded that Bain has Fourth Amendment rights in unit D
under both the reasonable-expectations test and the
common-law trespassory test, we ask next whether a search
occurred. Bain has argued that there was a search under both
the [Fourth] Amendment's 'very core' stands
'the right of a man to retreat into his own home and
there be free from unreasonable governmental
intrusion.'" Jardines, 133 S.Ct. at 1414
(quoting Silverman v. United
States, 365 U.S. 505, 511 (1961)). There is no reason to
expect a different answer when the home is a rented
condominium. See, e.g., Chapman v.
United States, 365 U.S. 610, 615 (1961) (rented
premises); Johnson v. United
States, 333 U.S. 10, 17 (1948) (hotel room).
might reasonably conclude that the inside of the front door
lock is within the home itself because it is within the outer
plane of the home's structure. Under Jardines,
however, all we need decide is whether the inside of the
front door lock is at least within the home's curtilage.
Under United States v. Dunn, 480
U.S. 294 (1987), "the centrally relevant
consideration" in determining the extent of a home's
curtilage is "whether the area in question is so
intimately tied to the home itself that it should be placed
under the home's 'umbrella' of Fourth Amendment
protection." Id. at 301. To help answer this
question, we consider four factors: (1) "the proximity
of the area claimed to be curtilage to the home"; (2)
"whether the area is included within an enclosure
surrounding the home"; (3) "the nature of the uses
to which the area is put"; and (4) "the steps taken
by the resident to protect the area from observation by
people passing by." Id.
the Dunn factors,  we conclude that the lock on the
door to unit D is within the unit's curtilage even if it
is not within the unit itself. The first factor is strongly
satisfied. Very few, if any, things are more proximate to the
interior of a home than is a lock on the door to the home.
Certainly, too, the interior of the lock, from which the
crucial information was gathered, is within or adjacent to
the enclosure of the door's outer face. The uses of the
lock also strongly weigh in favor of finding its penetration
to be a search. The lock, after all, is used precisely to bar
unwelcome entry and invasion of privacy. Finally, the very
design of a lock hides its interior from examination. All in
all, we have no difficulty finding that the inside of the
lock on the door of a home "should be placed under the
home's 'umbrella' of Fourth Amendment
Jardines, a physical intrusion into the curtilage to
obtain information (here, putting the key in the lock to see
if it fit) is a search unless it is within the "implicit
license" which "typically permits the visitor to
approach the home by the front path, knock promptly, wait
briefly to be received, and then (absent invitation to linger
longer) leave." 133 S.Ct. at 1415. To be clear, assuming
that the police were lawfully in the building, they could
approach the door and knock without being deemed to have
conducted a search. But walking up to the door of a home and
trying keys on the lock does not differ markedly from walking
up with a trained police dog to sniff around the door.
Paraphrasing Jardines: To find a visitor knocking on
the door is routine (even if sometimes unwelcome); to find
that same visitor trying a series of keys on the door's
lock "would inspire most of us to--well, ...