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United States v. Bain

United States Court of Appeals, First Circuit

October 13, 2017

YRVENS BAIN, a/k/a "E, " Defendant, Appellant.


          Christine DeMaso, Assistant Federal Public Defender, for appellant.

          Randall E. Kromm, Assistant United States Attorney, with whom William D. Weinreb, Acting United States Attorney, was on brief, for appellee.

          Before Torruella, Kayatta, and Barron, Circuit Judges.


         The 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.

         The 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 sentence.



         Brian 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.[1] We describe the relevant information contained in those affidavits.

         In 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.

         As part 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 afterwards.

         The 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.[2] The cooperating witness paid $100 in cash for a baggie containing 0.80 grams of a mixture of heroin and fentanyl.

         Three 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.

         The day 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 Webster Street.

         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.

         Two 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 person.

         The 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[3] 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 landing.

         Bain's name was not on any of the four mailboxes.

         After 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.

         Armed 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.

         Upon 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.

         The 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.[4] The government also argues, as a threshold matter, that Bain lacked sufficient connection to unit D to challenge the search.


         As we 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 been suppressed.[5]


         We 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 reasonable." Id.

         The 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)).

         In 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)).

         Under 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." Id.


         The 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.

         Bain 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.

         The 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.

         We 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 residence.

         Therefore, 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.


         Having 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 tests.


         "At 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).

         One 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.

         Applying the Dunn factors, [6] 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.[7] 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 protection." Id.


         Under 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, ...

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