United States v. Bey , 825 F.3d 75 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1655
UNITED STATES OF AMERICA,
Appellee,
v.
PAUL BEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Kayatta, and Barron,
Circuit Judges.
Vivianne Jeruchim, with whom Jeruchim & Davenport, LLP, was
on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
June 9, 2016
KAYATTA, Circuit Judge. Paul Bey pleaded guilty to a
variety of drug and firearm offenses. Pursuant to Federal Rule of
Criminal Procedure 11(a)(2), Bey's plea agreement reserved his
right to have this court review the district court's denial of his
motion to suppress the results of a search following an evidentiary
hearing. Otherwise, the plea agreement expressly waived Bey's
right to appeal his conviction, or to appeal any sentence that did
not exceed seventy months. Bey now appeals not only the denial of
the suppression motion, but also his sixty-month sentence, arguing
that enforcing his waiver of any right to challenge his sentence
would be a miscarriage of justice because the trial court
incorrectly calculated the sentencing range under the United
States Sentencing Guidelines (the "Guidelines"). For the reasons
that follow, we affirm the denial of the suppression motion and
reject the challenge to the sentence as waived.
I. Background
Because this appeal follows a guilty plea, we derive the
facts from the plea agreement, the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report, and
the sentencing hearing transcript. See United States v. Ocasio-
Cancel, 727 F.3d 85, 88 (1st Cir. 2013). Further, "we recite the
[additional] facts as found by the district court [in the
evidentiary hearing] to the extent they are not clearly
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erroneous."1 United States v. Beras, 183 F.3d 22, 24 (1st Cir.
1999).
On July 19, 2013, five police officers with the Everett,
Massachusetts, Police Department sought to execute a warrant for
Bey's arrest that stemmed from a domestic violence dispute
involving a firearm. Based on information offered by the victim
of that earlier offense, the officers determined that Bey was
likely staying at the home of Clarissa Summons in Everett. Bey
was barred from being within 100 yards of Summons's residence by
an abuse prevention order.
Sergeant Stallbaum was one of the five officers who
arrived at Summons's apartment and later testified at the
evidentiary hearing. Stallbaum, in testimony credited by the
district court, stated that Summons responded to the officers'
knocks on her front door.2 Asked whether Bey was inside, Summons
repeated aloud, "Is Paul Bey here?", and stated that she was not
sure whether Bey was in the residence. According to Stallbaum,
Summons then looked to her left and put her finger to her lips in
1
Bey asserts that several of the district court's credibility
determinations were clearly erroneous. We address these arguments
at greater length later in this opinion.
2
Three officers approached the front door, while two went to
the back of the house in case someone tried to run out the back
door. Of the three at the front door, two were in plain clothes
and one was in uniform. All three front-door officers were armed,
but their firearms were holstered.
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a hushing gesture. She then backed into the apartment while
opening the door to the home. The officers took this as both an
acknowledgment of Bey's presence in the residence and an invitation
to enter.
At this point, the officers entered the home, drew their
weapons, and quickly found Bey in a bedroom. Concerned for his
own safety, Stallbaum moved a black backpack on a nearby bed away
from Bey's reach, later testifying that he noticed that the bag
felt heavy and the objects inside were distributed unevenly. The
officers handcuffed Bey and asked him, before issuing Miranda
warnings, whether the backpack was his. Bey told the officers the
bag belonged to Summons. The officers removed Bey from the
apartment.
After Bey's departure, several officers stayed behind
and "look[ed] around" Summons's apartment. While Stallbaum left
to obtain a standard-issue consent to search form, another officer
on the scene, Officer McCabe, asked Summons for detailed
information regarding her four-year-old son who lived in the home
and was present at the time of the arrest. At some point in this
conversation, McCabe mentioned contacting the Massachusetts
Department of Children and Families ("DCF"). The district court
found that McCabe did not, however, refer directly to the
possibility of removing Summons's son from the home.
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Following that interaction, Stallbaum returned and asked
Summons to sign the consent to search form, seeking her permission
to search the premises for evidence of the gun used by Bey in the
domestic violence offense that had prompted the arrest. Stallbaum
told Summons that she was free to withhold her consent, but, if
she did, she and her son would have to leave the house for several
hours while the police secured the apartment and applied for a
search warrant. Stallbaum, at this point, had no knowledge of the
earlier conversation between McCabe and Summons regarding the DCF.
Summons signed the consent to search form. She told the
officers that the black backpack belonged to her but that she was
lending it to Bey. A search of the backpack yielded a loaded 9
millimeter semi-automatic pistol with two magazines of ammunition,
a plastic bag containing 15.31 grams of marijuana, a medication
container containing 22.5 15-milligram oxycodone pills, and a
small electronic scale determined to have cocaine and marijuana
residue on it.
On September 24, 2013, on the basis of the evidence found
in the backpack, a grand jury issued an indictment accusing Bey of
committing six drug and firearm-related offenses. Bey moved to
suppress the evidence found in the bag as the fruits of illegal
searches of both Summons's residence and the backpack itself.
After an evidentiary hearing, the district court denied Bey's
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motion. See United States v. Bey, 52 F. Supp. 3d 299, 300 (D.
Mass. 2014).
Bey thereafter entered into a plea agreement whereby he
agreed to plead guilty to the indictment's six charges.3 Pursuant
to this agreement, the government recommended, inter alia, a
sentence of seventy months' incarceration and agreed to refrain
from seeking an appeal of any sentence imposed below that
recommendation. The agreement explicitly preserved Bey's right to
mount a later challenge to the district court's denial of his
motion to suppress. Otherwise, Bey waived his right to appeal his
conviction or the sentence he received, unless it exceeded seventy
months. The district court ultimately sentenced Bey to sixty
months' incarceration.
II. Analysis
A. Motion to Suppress
Bey argues that the officers' entrance into Summons's
residence and subsequent search of the black backpack were
"unreasonable searches and seizures" prohibited by the Fourth
Amendment. U.S. Const. amend. IV. The government concedes that
the officers entered and searched the residence without a search
warrant, but argues that the searches in question fell within
several of the recognized exceptions to the Fourth Amendment's
3
Count Six was later withdrawn by the government and
dismissed at Bey's sentencing hearing.
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warrant requirement. In weighing Bey's challenge to the denial of
his motion to suppress, we review the district court's legal
conclusions de novo and its findings of fact for clear error.
United States v. Vázquez, 724 F.3d 15, 19 (1st Cir. 2013).
1. The Search of Summons's Apartment
It is not entirely clear that Bey has any right to
challenge the entry into Summons's apartment. To assert such a
right, Bey needs to show that he had a "reasonable expectation of
privacy" in Summons's residence, such that he could later challenge
the lawfulness of its search and seek to suppress the evidence
found within. See United States v. Symonevich, 688 F.3d 12, 18
n.3 (1st Cir. 2012). While Bey was likely, at the time of the
arrest, a regular "overnight guest[]" staying at Summons's
residence with her consent and therefore normally would have been
entitled to some measure of privacy, Minnesota v. Olson, 495 U.S.
91, 99 (1990), his presence in the home was also in clear violation
of an abuse protection order, see Bey, 52 F. Supp. 3d at 300-01.
Generally, one cannot form a legally recognizable
expectation of privacy in a place where one is not legally allowed
to be. See generally United States v. Battle, 637 F.3d 44, 49
(1st Cir. 2011) (collecting cases). Several other courts have
specifically held that a defendant cannot claim a reasonable
expectation of privacy to the interior of a home where the
defendant's very presence is unlawful due to a restraining order.
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See, e.g., United States v. Cortez-Dutrieville, 743 F.3d 881, 884-
85 (3d Cir. 2014); Commonwealth v. Morrison, 710 N.E.2d 584, 586
(Mass. 1999). Nevertheless, because the merits of Bey's challenge
are easily resolved and because the district court did not consider
the issue of Bey's expectation, we assume the reasonableness of
that expectation and proceed to consider whether it was honored.
See United States v. Weems, 322 F.3d 18, 23 (1st Cir. 2003).
The Fourth Amendment forbids law enforcement from
searching a home without a warrant unless the search falls under
"one of the 'few specifically established and well-delineated
exceptions' to the warrant requirement." United States v. Forbes,
181 F.3d 1, 5 (1st Cir. 1999) (quoting Schneckloth v. Bustamonte,
412 U.S. 218, 219 (1973)). While the government points to several
possibly applicable exceptions, we need consider only the argument
that the warrantless entry and search was justified by Summons's
consent.
For consent to a search to be valid, the government must
prove by a preponderance of the evidence that the consent was
uncoerced. See United States v. Vanvliet, 542 F.3d 259, 264 (1st
Cir. 2008). The presence of coercion is a question of fact based
on the totality of the circumstances, including "the consenting
party's knowledge of the right to refuse consent; the consenting
party's possibly vulnerable subjective state; and evidence of
inherently coercive tactics, either in the nature of police
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questioning or in the environment in which the questioning took
place." United States v. Twomey, 884 F.2d 46, 51 (1st Cir. 1989)
(citing Schneckloth, 412 U.S. at 227, 229, 247)). "Appellate
challenges to the district court's factual findings relating to
the validity of the consent normally are reviewed only for clear
error." Vanvliet, 542 F.3d at 264.
Bey makes no argument that the officers procured
Summons's acquiescence to the search of her apartment through
"fraud, deceit, trickery or misrepresentation." Id. (citing Moran
v. Burbine, 475 U.S. 412, 421 (1986)). Rather, he asserts that
the police "engaged in coercive tactics" that overpowered
Summons's will by "communicat[ing] the absolute need for
compliance by Summons." Such tactics, Bey argues, led to Summons
becoming "nervous and extremely anxious [because of] the
substantial law enforcement presence" and feeling "forced to
comply." Essentially, Bey argues, the district court mis-weighed
the totality of circumstances in the officers' favor, giving short
shrift to Summons's subjective experience of fear and anxiety
produced by the presence of the officers.
While "the consenting party's possibly vulnerable
subjective state" is a factor in our balancing approach, Twomey,
884 F.2d at 51, it is but one. The district court's finding that
there was nothing in "Summons's demeanor that would suggest that
her ability to voluntarily consent was diminished," Bey, 52 F.
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Supp. 3d at 303, is well supported by the record as developed at
the evidentiary hearing. In crediting Stallbaum's account of the
front-door interaction and discounting Summons's subsequent
testimony as to the overbearing, fear-inducing impression that the
officers' presence provoked, we see no clear error in the district
court's "careful sifting of the unique facts and circumstances" of
the case. Schneckloth, 412 U.S. at 233.
Nor can we deem the officers' behavior so "inherently
coercive," United States v. Jones, 523 F.3d 31, 38 (1st Cir. 2008),
that Summons's "capacity for self-determination [was] critically
impaired," Schneckloth, 412 U.S. at 225. The "tactics" the three
police officers engaged in here--appearing at a doorstep and doing
no more than informing a resident that they were in possession of
an arrest warrant for an individual believed to be inside--do not
approach the far more robust police activity that we have
previously deemed to fall short of being "inherently coercive."
See, e.g., Jones, 523 F.3d at 38 (consent provided after "some ten
to fifteen government agents, guns drawn, entered [the
defendant's] hotel suite without knocking, handcuffed him, placed
him in a separate room, and proceeded to interrogate him" not
coerced); United States v. Barnett, 989 F.2d 546, 555 (1st Cir.
1993) (consent provided after defendant "was met at the door of
his home by seven or eight law enforcement officers, with guns
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drawn," was "arrested and handcuffed," and was "advised . . . of
his Miranda rights" not coerced).
Summons was not in custody when she provided consent.
During the exchange at the front door, the officers' guns were not
drawn and the officers did not attempt to apply any pressure beyond
appearing ready and eager to enter. "There was no overt act or
threat of force against [Summons]," nor were there "promises made
to [her]," nor are there any "indication[s] of more subtle forms
of coercion that might flaw [her] judgment." United States v.
Watson, 423 U.S. 411, 424 (1976). Indeed, the officers did not
even directly ask to be admitted before Summons opened the door to
them and (perhaps because she was fearful not of the police but of
Bey) signaled that they should enter. Our examination of the
totality of the circumstances accords with that of the district
court: Summons's decision to admit the officers into her home for
the purpose of searching for Bey was knowing and intelligent.
2. The Search and Seizure of Bey's Backpack
The district court further found that, by signing the
consent to search form, Summons acceded to the government's search
of the black backpack found near Bey.4 Bey, 52 F. Supp. 3d at 303–
4 Because we see no Fourth Amendment violation in the
officers' entrance into, and search of, Summons's residence, we
need not address Bey's argument that the backpack evidence must be
excluded as the "fruit of [a] poisonous tree." See Wong Sun v.
United States, 371 U.S. 471, 488 (1963).
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06. This additional grant of consent, Bey argues, was obtained
through official coercion.
Bey conceded in district court "that Summons possessed
common authority to consent to a search based on her ownership and
shared use of the backpack." Bey, 52 F. Supp. 3d at 304. Thus,
the government's search of the backpack was legal, and the evidence
found within it will not be suppressed, if we find that Summons's
acquiescence to that search was voluntary. Cf. United States v.
Matlock, 415 U.S. 164, 170 (1974) ("[T]he consent of one who
possesses common authority over premises or effects is valid as
against the absent, nonconsenting person with whom that authority
is shared.").
Bey argues that Summons's consent to the search of the
bag was procured by the officers' threat to call the state's child
welfare agency and the invocation of the possibility that her young
son would be removed from her home. In Bey's telling, the officers
repeatedly threatened Summons with a DCF visit and the removal of
her child for a period of "well over 15–20 minutes," during which
time the officers had already begun to search the backpack. The
officers' later procurement of Summons's signature on the consent
form, Bey says, was a post-hoc "cover up" attempt. Given this
allegedly overbearing pressure and exploitation of the
relationship between a mother and her young son, Bey asserts that
Summons could not have consented voluntarily. See, e.g., Lynumn
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v. Illinois, 372 U.S. 528, 534 (1963) (confession to police
involuntary when made "after the police had told [the suspect]
that state financial aid for her infant children would be cut off,
and her children taken from her, if she did not 'cooperate'").
This re-creation of what occurred after Bey was arrested
and removed from Summons's home differs dramatically from the
account provided by the officers and found more credible by the
district court. "In the absence of a reason not to do so, this
court defers to the district court's personal observations and
evaluation of the witnesses' credibility." United States v.
Marshall, 348 F.3d 281, 286 (1st Cir. 2003). The district court
found that while Officer McCabe did mention contacting the DCF in
conversation with Summons, this exchange occurred during a one-
on-one conversation between McCabe and Summons. Bey, 52 F. Supp.
3d at 301. While recognizing that Summons "became concerned" about
the potential consequences of any DCF intervention, the district
court determined that McCabe never made any reference to the
possibility that Summons's son could be removed from the home.5
Id.
5McCabe's reference to the DCF and questions regarding the
safety of Summons's child appear to have been, in any event,
pursuant to official police obligations since McCabe was likely a
mandated reporter of potential child neglect under state law. See
Mass. Gen. Laws ch. 119, § 51A(a). And, sensibly, there is no
penalty in our Fourth Amendment framework for attempts by law
enforcement to "secur[e] convenient and prompt consensual access
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"Shortly after" this exchange, the court found,
Stallbaum returned inside with the consent form and sat down with
Summons to review the document, informing her of her right to
withhold consent and refraining from making "any . . . threats or
promises in an attempt to persuade Summons to sign the form." Id.
at 301–02. The court found that Stallbaum had no knowledge of the
earlier discussion between Summons and McCabe that touched on the
DCF. Id. at 301. The evidence also indicated that the officers
did tell Summons what would happen if she did not sign the consent
and, in doing so, made no suggestion that the child would be taken.
All in all, the district court did not clearly err in ruling that
Summons's consent to search the apartment was voluntary.
B. Sentencing Calculation
Finally, we turn to Bey's challenge to his sentence. In
ascertaining the proper Guidelines sentencing range, the district
court relied, in part, on the Guidelines' armed career offender
enhancement, U.S.S.G. § 2K2.1(a)(3), to classify a prior 2004
conviction as a "crime of violence," see id. § 4B1.2(a). The
effect of this classification was to increase the lower and upper
ends of the sentencing range by sixteen and twenty months,
respectively. The parties agree that, in light of the Supreme
Court's subsequent decision in Johnson v. United States, 135 S.
[to premises] by conveying accurate information to a recipient."
Vázquez, 724 F.3d at 22.
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Ct. 2551 (2015) ("Johnson II"), that the "residual clause" of the
Armed Career Criminal Act, 18 U.S.C. § 924(e), is
unconstitutionally vague and thus void, id. at 2557, the district
court erred. The government nevertheless argues that the waiver
of appellate rights contained in the plea agreement stops Bey's
appeal in its tracks.
Bey's plea agreement contained a detailed estimation of
his sentencing exposure. The agreement's Guidelines calculation
materially tracked that adopted by the district court,
contemplating a base offense level ("BOL") of 22 based on the
career offender enhancement. Elsewhere in the agreement, both Bey
and the government forfeited certain appellate rights. With
respect to Bey's ability to appeal the sentence he received, the
agreement stated:
Defendant agrees not to file a direct appeal
or challenge in a future proceeding
(collateral or otherwise) any sentence of
imprisonment of 70 months or less or any
orders relating to supervised release, fines,
forfeiture, and restitution. This provision
is binding even if the Court's Guidelines
analysis is different from that set forth in
this Agreement.
"A defendant who waives his right to appeal and
thereafter attempts to avoid the effect of the waiver must confront
the waiver head-on." United States v. Miliano, 480 F.3d 605, 608
(1st Cir. 2007). Under our case law, appellate waivers in plea
agreements are "presumptively valid," United States v. Teeter, 257
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F.3d 14, 25 (1st Cir. 2001), subject to three "stringent criteria,"
id. at 23. First, the plea agreement must "elucidat[e] the waiver
and delineat[e] its scope." Id. at 24. Second, the change-of-
plea colloquy must "suffice[ ] to ensure that the defendant freely
and intelligently agreed to waive [his] right to appeal." Id.
Finally, "if denying a right of appeal would work a miscarriage of
justice, the appellate court, in its sound discretion, may refuse
to honor the waiver." Id. at 25.
While not tackling these requirements "head-on," Bey's
appeal can only be understood as arguing that enforcement of the
waiver would work a "miscarriage of justice." We have previously
instructed that the miscarriage of justice exception is meant only
"to grant relief . . . in egregious cases," id. at 25, and is to
"be applied sparingly and without undue generosity," id. at 26.
To assess the appropriateness of invoking the exception, we
consider "the clarity of the [alleged] error, its gravity, its
character (e.g., whether it concerns a fact issue, a sentencing
guideline, or a statutory maximum), the impact of the error on the
defendant, the impact of correcting the error on the government,
and the extent to which the defendant acquiesced in the result."
Id.
Taking the disputed enhancement out of the equation, the
lower end of the sentencing range would still have exceeded the
actual sentence. Furthermore, Bey's appellate waiver provision
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included not just belt, but also suspenders, expressly stating
that it was "binding even if the Court's Guidelines analysis is
different from that set forth in this Agreement."
While an unobjected-to Guidelines calculation that the
parties agree is overstated in view of Johnson II may in some
circumstances be plain error, see, e.g., United States v. Hudson,
No. 14-2124, 2016 WL 2621093, at *5–7 (1st Cir. May 9, 2016) (one-
level increase in defendant's criminal history category presumably
voided by Johnson II vacated and remanded on plain error review),
it is not, in this case, a miscarriage of justice so "egregious"
that we would decline to enforce the strong appellate waiver clause
to which Bey agreed. See Sotirion v. United States, 617 F.3d 27,
38 (1st Cir. 2010) (no miscarriage of justice to overcome appellate
waiver when plea agreement misapplied "two-level increase [of
defendant's total offense level] for abuse of trust in its
calculation of his advisory sentencing guidelines range").
III. Conclusion
Bey's conviction and sentence are affirmed.
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