United States v. Bain

United States Court of Appeals
For the First Circuit
No. 16–1140
UNITED STATES OF AMERICA,
Appellee,
v.
YRVENS BAIN, a/k/a "E,"
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
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.
October 13, 2017
KAYATTA, Circuit Judge. 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
- 2 -
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.
I.
A.
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
1 The search warrant application included both a search
warrant affidavit and the affidavit previously submitted to
support the application for the criminal complaint. See United
States v. Bain, 155 F. Supp. 3d 107, 112 n.1 (D. Mass. 2015). The
district court drew from both affidavits in evaluating whether
there was probable cause to issue the search warrant. See id.Bain has not objected to this approach.
- 3 -
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
2
Connerney identified Bain's car as a brown Cadillac DeVille
with a Massachusetts license plate. The car was registered in
Bain's name at an address in Arlington. Connerney confirmed that
a police report in a prior case involving Bain reported him driving
the same vehicle in July 2011.
- 4 -
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.
- 5 -
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 D3]
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
3 We refer to this location as "unit D" rather than
"apartment D" because the unit was in fact a condominium, which
the tenant rented from someone who owned only that single
condominium.
- 6 -
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
- 7 -
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
- 8 -
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.
B.
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
4 The district court also ruled that no exigent circumstances
rendered the entry into unit D reasonable. See id. at 122–23.
The court therefore did not consider any evidence obtained from
that entry when evaluating the warrant. See id. The government
does not challenge this ruling.
5 We could skip all but the last finding by merely assuming
answers to the other issues favorable to Bain. We eschew that
more limited approach in order to clarify our case law on the
predicate issues in a case in which we have the benefit of very
good briefs by both sides. See United States v. Leon, 468 U.S.
- 9 -
1.
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
897, 924 (1984) ("There is no need for courts to adopt the
inflexible practice of always deciding whether the officers'
conduct manifested objective good faith before turning to the
question whether the Fourth Amendment has been violated.
Defendants seeking suppression of the fruits of allegedly
unconstitutional searches or seizures undoubtedly raise live
controversies which Art. III empowers federal courts to
adjudicate.").
- 10 -
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
- 11 -
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.
- 12 -
2.
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,
- 13 -
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
- 14 -
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.
3.
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.
a.
"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
- 15 -
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
6
We do not rely on the statement in United States v. Cruz
Pagán, 537 F.2d 554 (1st Cir. 1976), that the curtilage of each
unit in a condominium complex extends only to areas in the
exclusive control of the unit's occupant. Id. at 558. This
reasoning was unnecessary to Cruz Pagán's holding, which only
concerned whether the resident of a condominium complex has a
reasonable expectation of privacy in the complex's shared
underground garage. Id. at 557 ("The legal question which we must
resolve is whether the agents' entry into the garage defeated the
reasonable expectation of privacy of any of the appellants.").
The court only raised the issue of curtilage on the "[a]ssum[ption]
that concepts of curtilage have some relevancy to the Katz
inquiry," id. at 558, and, even then, the only conclusion necessary
to the court's holding was that the garage was not part of the
unit's curtilage. The broader language about whether other
portions of the condominium complex were within the unit's
curtilage was therefore dicta. On top of that, Cruz Pagán dates
from before Dunn and did not consider any of the factors deemed
significant by Dunn. For these reasons, we do not think Cruz
Pagán's broad declaration about the scope of a condominium unit's
curtilage binds us.
7
Thus, we need not address the government's argument that
unit D's tenant lacked a possessory interest in the door of the
unit.
- 16 -
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.b.
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
- 17 -
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, call the police." 133 S. Ct. 1416. As in Jardines,
"the background social norms that invite a visitor to the front
door do not invite him there to conduct a search." Id. In short,
a search occurred.
c.
The government nevertheless argues that we are
foreclosed from holding that trying the key on the door to unit D
constituted a "search" by United States v. Lyons, 898 F.2d 210(1st Cir. 1990), and United States v. Hawkins, 139 F.3d 29, 31
(1st Cir. 1998). We disagree. Lyons and Hawkins concerned the
use of keys on storage container padlocks. Lyons, 898 F.2d at 212;
Hawkins, 139 F.3d at 31. Storage container padlocks are "effects"
under the Fourth Amendment. See Lyons, 898 F.2d at 219 (Woodlock,
J., dissenting); cf. Oliver, 466 U.S. at 177 n.7 ("The Framers
would have understood the term 'effects' to be limited to personal,
rather than real, property."); United States v. Jacobsen, 466 U.S.
109, 114 (1984) (letters and sealed packages are effects); United
States v. Place, 462 U.S. 696, 705–06 (1983) (luggage is an
effect); Jones, 565 U.S. at 404 ("It is beyond dispute that a
vehicle is an 'effect' as that term is used in the [Fourth]
Amendment."). The Fourth Amendment protects effects markedly less
than it protects houses. See Jardines, 133 S. Ct. at 1414 ("When
- 18 -
it comes to the Fourth Amendment, the home is first among
equals."); Chambers v. Maroney, 399 U.S. 42, 52 (1970) ("[F]or the
purposes of the Fourth Amendment there is a constitutional
difference between houses and cars."). Indeed, before Jardines
the Supreme Court held that dog-sniffs of certain effects are not
searches under the Fourth Amendment. See Illinois v. Caballes,
543 U.S. 405, 409 (2005) (dog sniff of car); Place, 462 U.S. at
707 (dog sniff of luggage). Jardines reached a different
conclusion because it concerned a house rather than an effect.
Justice Kagan's concurrence in Jardines explained that Caballes
did not control because the Court had "held, over and over again,
that people's expectations of privacy are much lower in their cars
than in their homes." 133 S. Ct. at 1419 n.1 (Kagan, J.,
concurring). Likewise, here, our statements in Lyons and Hawkins
concerning the insertion of keys into padlocks on storage
containers do not control whether testing a key on the lock to a
home is a search.
The government also points to other circuit courts that
have reached the conclusion that testing a key on a lock is not a
search. Several of these cases involve the use of keys to identify
the owners of cars, which are, as we have just explained,
distinguishable. See United States v. $109,179 in U.S. Currency,
228 F.3d 1080, 1087-88 (9th Cir. 2000) (car door); United States
v. DeBardeleben, 740 F.2d 440, 445 (6th Cir. 1984) (car door).
- 19 -
The cases that involve testing keys on the doors to apartments are
also either distinguishable or unconvincing. United States v.
Salgado, 250 F.3d 438 (6th Cir. 2001), does involve testing a key
in an apartment door. Salgado, however, was decided well before
Jardines, and thus, at the time, plausibly rested on an observation
that the lock on the apartment door (in an unlocked hallway) was
"just as accessible to the public . . . as an automobile lock."
Id. at 457. In finding that the Fourth Amendment protects the
curtilage of a home from unlicensed searches even though it is
readily accessible to the public, Jardines eliminated that basis
for Salgado's holding. In United States v. Moses, 540 F.3d 263(4th Cir. 2008), the Fourth Circuit held that "the discrete act of
inserting the key into the lock and discovering whether or not it
fit did not offend the Fourth Amendment." Id. at 272. The opinion
contains no reasoning or analysis. It merely cites Salgado, Lyons,
$109,179 in U.S. Currency, and United States v. Concepcion, 942
F.2d 1170 (7th Cir. 1991). The first three cases we have discussed
and distinguished above. Concepcion actually held that testing
keys in an apartment door was a search, albeit one that was not
unreasonable (a finding we will discuss in the next section of
this opinion). See 942 F.2d at 1172-73. This case law provides
no persuasive support for the government's position, and we find
ourselves comfortable in concluding that testing the key in the
lock of unit D was a search.
- 20 -
4.
Having concluded that a search occurred when the police
placed and turned a key in the lock of the door to unit D, we must
determine whether that search was reasonable. The reasonableness
of a search is a question of law, which we review de novo. See,
e.g., United States v. Samboy, 433 F.3d 154, 158 (1st Cir. 2005).
a.
The starting point for the reasonableness analysis is
the "basic principle of Fourth Amendment law . . . that searches
and seizures inside a home without a warrant are presumptively
unreasonable." Kentucky v. King, 563 U.S. 452, 459 (2011). And,
as we have explained, Jardines treats unlicensed intrusions into
the home's curtilage as intrusions into the home, see 133 S. Ct.
at 1414, hence this presumption applies here even if we do not
deem the door lock to be within the home itself. "But . . . this
presumption may be overcome in some circumstances because [t]he
ultimate touchstone of the Fourth Amendment is reasonableness."
King, 563 U.S. at 459 (alteration in original) (quoting Brigham
City v. Stuart, 547 U.S. 398, 403 (2006)). The main exceptions to
this rule for house searches arise in cases of exigent
circumstances, see id. at 460 (listing the exceptions for
"emergency aid," for "hot pursuit" of a fleeing suspect, and for
preventing "the imminent destruction of evidence"), and consent,
see Georgia v. Randolph, 547 U.S. 103, 109 (2006).
- 21 -
The exigent circumstances exception to the warrant
requirement is a specific application of what the Supreme Court
has described as a more general rule: "When faced with special
law enforcement needs, diminished expectations of privacy, minimal
intrusions, or the like, the Court has found that certain general,
or individual, circumstances may render a warrantless search or
seizure reasonable." Illinois v. McArthur, 531 U.S. 326, 330
(2001); see also Maryland v. King, 133 S. Ct. 1958, 1969 (2013)
(relying on same principle for search of person); United States v.
Knights, 534 U.S. 112, 121 (2001) (similar for search of house);
Maryland v. Buie, 494 U.S. 325, 331 (1990) (similar). When a
warrantless search or seizure is not per se unreasonable, the court
may "balance the privacy-related and law enforcement-related
concerns to determine if the intrusion was reasonable." McArthur,
531 U.S. at 331. As the name suggests, the balancing test requires
assessing both the privacy interests and the law enforcement
interests involved. See Arizona v. Hicks, 480 U.S. 321, 327 (1987)
(stating that a seizure is justified on less than probable cause
when "the seizure is minimally intrusive and operational
necessities render it the only practicable means of detecting
certain types of crime"). The cases that apply this balancing
test generally replace the warrant requirement with some other
requirement, such as individualized suspicion at the level of
reasonable suspicion or probable cause, see, e.g., Pennsylvania v.
- 22 -
Labron, 518 U.S. 938, 940–41 (1996) (per curiam) (allowing
warrantless search of automobile with probable cause); Place, 462
U.S. at 706 (allowing temporary seizure of luggage based on
reasonable suspicion); Terry v. Ohio, 392 U.S. 1, 27 (1968)
(allowing stop-and-frisk with reasonable suspicion), or with a
limitation on the discretion of officers conducting the searches,
see, e.g., King, 133 S. Ct. at 1969–70 (allowing mandatory buccal
swabs of people arrested for serious crimes); Mich. Dep't of State
Police v. Sitz, 496 U.S. 444, 453–55 (1990) (allowing mandatory
stops at drunk driver checkpoint). When performing this balancing
test, a court must look to the "totality of the circumstances."
Missouri v. McNeely, 133 S. Ct. 1552, 1559 (2013) (citing, inter
alia, McArthur, 531 U.S. at 331). The government has the burden
of proving that a warrantless search was nevertheless reasonable.
See Vale v. Louisiana, 399 U.S. 30, 34 (1970) ("[O]nly in 'a few
specifically established and well-delineated' situations may a
warrantless search of a dwelling withstand constitutional
scrutiny, even though the authorities have probable cause to
conduct it. The burden rests on the State to show the existence
of such an exceptional situation." (citation omitted)).
b.
The sum total of the government's argument that the
search of unit D's lock was reasonable is (1) repeating that the
intrusion involved in testing a key in a lock is "minor" or
- 23 -
"minimal," and (2) providing a string citation to a series of cases
concluding that testing a key in a lock does not require a warrant
or probable case. Two of the cases the government cites, Lyons
and $109,179 in U.S. Currency, involve locks on effects rather
than homes, as discussed above. One of the cases the government
cites, Moses, contains no analysis, as we have also mentioned. We
focus, therefore, on the government's other two cited cases:
United States v. Thompson, 842 F.3d 1002 (7th Cir. 2016), and
Commonwealth v. Alvarez, 661 N.E.2d 1293 (Mass. 1996). Both of
these cases rely for their reasoning on an earlier Seventh Circuit
case, United States v. Concepcion, 942 F.2d 1170 (7th Cir. 1991).
See Thompson, 842 F.3d at 1008; Alvarez, 661 N.E.2d at 1302 & n.10.
We do not think the reasoning of Concepcion adequately supports
the government's argument as to unit D.8
In Concepcion, the Seventh Circuit held that the use of
a key in the lock of an apartment was a search, but that the search
was reasonable without a warrant or probable cause. See 942 F.2d
at 1172–73. The court reached the latter conclusion because
[w]here [the defendant] lived was something
the agents could have ascertained in many
other ways. They could have looked him up in
the telephone book or conducted a computer
search of drivers' licenses. If they did not
find him (or if they found too many persons of
the same name), they could have visited the
landlord and asked who lived in apartment 1C.
8 We focus on Concepcion because neither Thompson nor Alvarez
adds anything of relevant substance to Concepcion's analysis.
- 24 -
Instead of asking the landlord who lived
there, they could have shown the landlord the
key in their possession and asked the landlord
to compare it with the key issued to the
tenant. So too the agents could have followed
Concepcion around to learn his residence (as
they did; the key just confirmed what they
thought they knew). The information the
agents obtained from putting the key in the
lock thus was no secret.
Id. at 1173. The court contrasted the use of the key to the search
found unreasonable in Hicks. There, a police officer who was
lawfully present in an apartment to investigate gunfire noticed
expensive stereo equipment including a turntable, moved the
turntable to record its serial number, and then used the serial
number to determine that the turntable had been stolen. See 480
U.S. at 323. The Supreme Court held that merely moving the
turntable to read its serial number was an unreasonable search,
even though the turntable itself was in plain view, because there
was no probable cause to believe the turntable was stolen. See
id. at 324–26, 326–27. In Concepcion, the Seventh Circuit
concluded that trying the key on the lock was a materially more
minimal intrusion than moving the turntable because "[w]hat the
officers learned from inverting the turntable in Hicks they could
not have come by in any other way," while the agents in Concepcion
"invaded less of [the defendant's] interest in security of
information when they used the key to verify his address." 942
- 25 -
F.2d at 1173. The court thus concluded that neither a warrant nor
probable cause was required to try the key. Id.
We question the logic of justifying a search of this
type by reasoning that the information gathered by the search could
have been easily obtained otherwise. After all, there are likely
many pieces of information within a home that might be obtained
from other sources without searching the home. It would seem,
too, that the ease of obtaining information elsewhere undercuts
law enforcement's need to access the home more than it necessarily
minimizes the nature of the intrusion into the home or its
curtilage.
In any event, the government has made no argument and
offered no evidence that it even considered, much less pursued,
other possible means of determining in which unit Bain resided.
Nor does the government suggest that any exigencies in this case
drove the need to turn the key in the lock of a home. No claim is
made on appeal that evidence was being destroyed or that an
imminent danger existed that the officers needed to enter unit D
to address.
One might also say that the officers were merely trying
to identify unit D as Bain's residence, rather than searching
unit D. Cf. DeBardeleben, 740 F.2d at 445. Of course, one could
equally say that the officers in Hicks were merely trying to
identify the turntable. The key point is that the officers
- 26 -
intruded without license or warrant into the curtilage of Bain's
"home" solely to gather information to be used in building a
criminal case against him. In short, we see no reason to conclude
that the law enforcement-related concerns sufficiently outweighed
the privacy-related concerns to render this search reasonable.9
5.
Although we have concluded that there was an
unreasonable search in violation of the Fourth Amendment, that
does not necessarily mean that the evidence seized pursuant to the
warrant must be suppressed. A number of exceptions to the
exclusionary rule exist, and the government has argued two of them:
good-faith reliance on clear precedent and good-faith reliance on
a warrant.10
9 We do not consider whether the curtilage of unit D extended
to the entire second-floor landing, which might mean that trying
the key on the door to the neighboring apartment was a search of
unit D, or to the entire common space of 131 Laurel Street, which
might mean that trying the key on the door of both of the other
apartments in the building were searches of unit D. As we explain
in footnote 10, infra, we reject on other grounds the independent
source doctrine argument to which these other searches might have
been relevant.
10At oral argument, the government belatedly sought to argue
that by turning the key in the other two units accessible through
the front entry, the officers generated information from which the
magistrate could infer that the key fit the remaining unit (unit D)
even without taking into account the results of turning the key in
the lock on unit D. See United States v. Dessesaure, 429 F.3d
359, 367 (1st Cir. 2005). Apart from coming too late, this
argument also fails because the affidavit used to secure the
warrant contained no information from which the magistrate could
determine that only three of the building's four units were
reachable through that entryway. See Whiteley v. Warden, Wyo.
- 27 -
a.
The government argues that the officer who turned the
key relied in good faith on precedent and, therefore, the
exclusionary rule should not apply to the information obtained
either from that warrantless search or from the search warrant
obtained with affidavits containing that information. This
argument relies on Davis v. United States, 564 U.S. 229 (2011), in
which the Supreme Court held that evidence obtained from a
warrantless search performed in good-faith reliance on binding
precedent should not be subject to the exclusionary rule. See id.
at 235, 240–41. As applied here, this argument also presumes that
if information obtained in reliance on clear precedent should not
be suppressed, it also should not be excised from a warrant
affidavit in deciding whether there was probable cause to issue
the warrant. Cf. United States v. Dessesaure, 429 F.3d 359, 367
(1st Cir. 2005).
The district court accepted these arguments. It held
that trying the key on the lock of unit D was a search and a Fourth
Amendment violation, but that the police "reasonably relied" on
this court's earlier opinions in Lyons and Hawkins. See Bain,
State Penitentiary, 401 U.S. 560, 565 n.8 (1971) ("Under the cases
of this Court, an otherwise insufficient affidavit cannot be
rehabilitated by testimony concerning information possessed by the
affiant when he sought the warrant but not disclosed to the issuing
magistrate.").
- 28 -
155 F. Supp. 3d at 121–22. The district court then concluded,
implicitly, that information obtained in good-faith reliance on
precedent need not be excluded from a warrant affidavit when
determining whether the independent source doctrine applies under
Dessesaure. See id. at 124.
This court has clarified that "the [Davis] exception is
available only where the police rely on precedent that is 'clear
and well-settled.'" United States v. Sparks, 711 F.3d 58, 64 (1st
Cir. 2013) (quoting United States v. Davis, 598 F.3d 1259, 1266
(11th Cir. 2010)). "[T]his emphasis on the clear application of
the precedent to the case at hand is consistent with Davis's focus
on deterrence; where judicial precedent does not clearly authorize
a particular practice, suppression has deterrent value because it
creates an 'incentive to err on the side of constitutional
behavior.'" Id. (quoting Davis, 598 F.3d at 1266-67); see also
United States v. Whitaker, 820 F.3d 849, 854–55 (7th Cir. 2016)
(requiring an on-point holding); United States v. Burston, 806
F.3d 1123, 1129 (8th Cir. 2015) (requiring a holding in a similar
factual context).
We do not think that Davis covers the police conduct
here. As discussed above, the facts of Lyons were quite different
from the facts here and were different in ways that a reasonable
person would suspect might be legally significant. That suspicion
would have been heightened by Jones and Jardines, both of which
- 29 -
were decided before the search in this case occurred in 2014. In
light of Jardines, it could not have been "clear and well-settled"
that Lyons would apply to testing keys on the locks of houses.
Indeed, Lyons relied on authority that clearly did not apply to
houses in light of Jardines: Lyons cited Place to support its
conclusion that testing the key on the padlock was not a search.
See Lyons, 898 F.3d at 213 (citing Place, 462 U.S. at 707). Place
held that using a drug-detecting dog to sniff luggage was not a
Fourth Amendment search. See 462 U.S. at 707. Jardines reached
a holding directly to the contrary with respect to houses. Several
of the opinions in Jardines highlighted this distinction. See
Jardines, 133 S. Ct. at 1419 n.1 (Kagan, J., concurring); id. at
1424 (Alito, J., dissenting). In light of these distinctions, we
cannot agree that police were acting in accordance with precedent
that was "clear and well-settled." Sparks, 711 F.3d at 64.11
b.
The government argues in the alternative that no
suppression should result because the officers who searched unit D
relied in good faith on the magistrate's issuance of a warrant,
11This circuit has left open the question as to whether, in
the absence of binding in-circuit precedent, law enforcement may
reasonably rely on out-of-circuit case law as providing
sufficiently clear precedent. See Sparks, 711 F.3d at 63. This
case does not provide an occasion to answer that question because
the government argues only that the officers reasonably relied on
Lyons and Hawkins.
- 30 -
even though the affidavit contains information obtained in
violation of the Fourth Amendment. In support of this argument,
the government points to United States v. Leon, 468 U.S. 897(1984). Under Leon, evidence obtained from a search conducted "in
objectively reasonable reliance on a subsequently invalidated
search warrant" need not always be excluded. See id. at 922.
Although the existence of a warrant issued by a magistrate will
usually establish this form of good faith, "in some circumstances
the officer will have no reasonable grounds for believing that the
warrant was properly issued." Id. at 922–23 (footnote omitted).
The Leon court provided examples of four such circumstances:
(1) "if the magistrate or judge in issuing a warrant was misled by
information in an affidavit that the affiant knew was false or
would have known was false except for his reckless disregard of
the truth," id. at 923 (citing Franks v. Delaware, 438 U.S. 154(1978)); (2) "where the issuing magistrate wholly abandoned his
judicial role," id.; (3) when an affidavit is "so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable," id. (quoting Brown v. Illinois,
422 U.S. 590, 610–611 (1975) (Powell, J., concurring in part));
and (4) when, "depending on the circumstances of the particular
case, a warrant [is] so facially deficient--i.e., in failing to
particularize the place to be searched or the things to be seized-
-that the executing officers cannot reasonably presume it to be
- 31 -
valid." Id. We review the application of the good-faith exception
de novo. See United States v. Baez, 744 F.3d 30, 33 (1st Cir.
2014).
Here, we have a circumstance not expressly addressed in
Leon: the warrant affidavit forthrightly discloses facts that
establish probable cause, but one of the facts essential to
establishing probable cause (the result of the key turn) was
obtained as a result of an unconstitutional search. We encountered
a very similar circumstance in United States v. Diehl, 276 F.3d 32(1st Cir. 2002). In Diehl, the defendant sought suppression of
evidence "seized pursuant to a facially valid warrant." Id. at
34. As in this case, the warrant affidavit contained a report
that an officer had previously approached the searched location
and this report "was necessary to establish the probable cause
justifying issuance of the warrant." Id. at 35, 41–42.
Anticipating Jardines, this court concluded that the officer's
earlier visit to the location was an unconstitutional search
because it involved a warrantless trespass on the curtilage of the
residence. See id. at 38, 41. Nevertheless, we concluded that
Leon's good faith exception applied. In so ruling, we focused on
the accuracy and completeness of the manner in which the
information supporting the warrant was conveyed to the magistrate
issuing the warrant. Placing the burden on the government, id. at
42, we asked whether the affiant's recitation of the facts was
- 32 -
infected "with an intentional misrepresentation, or one made with
reckless disregard of the truth," so as to mislead the magistrate.
Id. We asked as well whether, by omission or error, the
description "[took] away from the issuing court the ability to
decide" the curtilage issue for itself. Id. at 42-43. We also
asked whether enough information was given to the issuing judge to
determine whether the officer who invaded the curtilage acted "in
such bad faith as to preclude a warrant." Id. at 43. Finally, we
noted the possibility that snow cover may have misled the officers
as to the contours of the curtilage, which would further negate
any inference of bad faith. Id. All in, we found the case to
present "'a penumbral zone' within which an inadvertent mistake
would not call for exclusion." Id. (quoting Leon, 468 U.S. at 925
n.26).
Diehl's application of the Leon good-faith exception
finds company in the majority of circuits that have considered the
question posed by reliance on a warrant that is itself tainted by
the results of an unconstitutional search. See, e.g., Hopkins,
824 F.3d at 733; United States v. Ganias, 824 F.3d 199, 222–23 (2d
Cir. 2016) (en banc); United States v. Massi, 761 F.3d 512, 528
(5th Cir. 2014); United States v. McClain, 444 F.3d 556, 565–66
(6th Cir. 2005). At least two circuits have disagreed with this
majority view, see, e.g., United States v. McGough, 412 F.3d 1232,
1239–40 (11th Cir. 2005); United States v. Wanless, 882 F.2d 1459,
- 33 -
1466–67 (9th Cir. 1989), as have a few commentators, see, e.g.,
1 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth
Amendment § 1.3(f) (5th ed. 2016) (stating that "there is good
reason to doubt" whether the plurality rule is correct); Craig M.
Bradley, The "Good Faith Exception" Cases: Reasonable Exercise in
Futility, 60 Ind. L.J. 287, 302 (1985) ("When the magistrate issued
the warrant, he did not endorse past activity; he only authorized
future activity . . . . [T]he function of the magistrate is to
determine 'whether a particular affidavit establishes probable
cause,' not whether the methods used to obtain the information in
that affidavit were legal." (quoting Leon, 468 U.S. at 914)).
Diehl would seem to suggest that the minority position takes too
cramped a view of what magistrates do, and accords too much
relevance to a distinction that may have no bearing on the presence
or absence of good faith. Diehl, 276 F.3d at 42-43. Be that as
it may, this case presents no reason to deviate from Diehl's
interpretation of Leon. Under Diehl, good faith reliance on a
warrant procured and issued in good faith saves the fruits of a
warranted search from suppression.
So, we turn to the question of good faith. Unlike in
Diehl, the invasion of the curtilage in this case could not be
said to be the result of the officer's misapprehension of the
facts. Here, any misapprehension was purely a misapprehension of
the law. Diehl offers no direct guidance on how to define the
- 34 -
point at which such a misapprehension equates with the bad faith
that would negate reliance on the warrant. Pointing to United
States v. Hopkins, 824 F.3d 726 (8th Cir.), cert. denied, 137 S.
Ct. 522 (2016), the government says that we should find the Leon
good faith exception applicable because the key-turn was "close
enough to the line of validity to make the officers' belief in the
validity of the warrant objectively reasonable." Id. at 733. Bain
declines to argue that we should not employ Hopkins's formulation.
Rather, he argues that the officers' conduct here fails to qualify
under that formulation. Hopkins's focus on objective
reasonableness seems to align with Leon's repeated references to
reasonableness. This alignment, coupled with Bain's failure to
contest the application of Hopkins, leads us to employ Hopkins's
formulation, albeit by assuming rather than deciding that such a
formulation is the proper one for measuring the officer's good
faith.
Applying this formulation, we conclude that the police
could rely in good faith on the search warrant in this case. As
we have explained, our decisions in Lyons and Hawkins did not
clearly classify the turning of a key in an apartment lock as being
a reasonable search. Warrants, though, make a difference. Once
the magistrate issued a warrant, the relevant question was no
longer whether clear precedent blessed the search upon which the
warrant was based in part. Rather, the question became whether
- 35 -
precedent pointed enough in that direction to allow an objectively
reasonable officer informed about the law to conclude
(erroneously, as we have now explained) that he could turn a key
in the lock of unit D on the basis of a reasonable suspicion short
of probable cause.
We think that reasonable officers informed about the law
(prior to the issuance of this opinion) could have so concluded.
Indeed, the Massachusetts Supreme Judicial Court had so concluded,
holding that only reasonable suspicion was required for just such
a search. See Alvarez, 661 N.E.2d at 1302. So, too, as we have
noted, did the Seventh Circuit in Concepcion, and it did so on
grounds not directly rejected in Jardines. See Concepcion, 942
F.2d at 1172–73. Given the facts known to the officers at the
time they tried the keys, it was reasonable to suspect that turning
the key on the lock to unit D would lead to evidence of Bain's
drug dealing. There was good reason to believe Bain was residing,
at least temporarily, in one of the apartments accessible through
the front door of 131 Laurel Street: He had been seen there
previously both during the day and late at night, and he walked
out that front door right before his arrest. His keys, in turn,
did not work in the doors of two other units, leaving a fifty
percent chance that they would fit unit D.12 As we will discuss
12In fact, only three units were accessible through the front
door, but this fact, although helpful to establishing probable
- 36 -
in the next section, there was a nexus between Bain's drug dealing
and the location where he was residing. Given the presence of
reasonable suspicion, and given the state of the law prior to
today's decision holding the key turning to constitute an unlawful
search, checking the keys on the door to unit D was sufficiently
close to the line of validity that the police could rely in good
faith on the search warrant.
c.
Finally, Bain raises an alternative argument for
suppressing the fruits of the warranted search. He contends that
the warrant was defective because the affidavits provided no
probable cause to believe that evidence of his suspected crime
would be found in unit D, even without excising the fact that a
key in his possession opened unit D. The question posed by this
argument is whether the warrant affidavits were "so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable." Leon, 468 U.S. at 923.
Bain does not challenge that the police had probable
cause to believe that he committed a crime; instead, he argues
that the search warrant affidavits did not establish an adequate
nexus between that crime and unit D. "When it comes to nexus,
cause, was not clearly set forth in the affidavits used to secure
the search warrant. Whether we could rely on such an undisclosed
but favorable fact given the absence of any motive to conceal it,
we need not decide.
- 37 -
common sense says that a connection with the search site can be
deduced 'from the type of crime, the nature of the items sought,'
plus 'normal inferences as to where a criminal would hide' evidence
of his crime." United States v. Rivera, 825 F.3d 59, 63 (1st Cir.
2016) (quoting United States v. Feliz, 182 F.3d 82, 88 (1st Cir.
1999)). This court has, "with a regularity bordering on the
echolalic, endorsed the concept that a law enforcement officer's
training and experience may yield insights that support a probable
cause determination." United States v. Floyd, 740 F.3d 22, 35
(1st Cir. 2014). We also have a line of precedent that addresses
when police have probable cause to search the homes of people known
to be selling drugs. See United States v. Barnes, 492 F.3d 33, 37
(1st Cir. 2007); United States v. Ribeiro, 397 F.3d 43, 49 (1st
Cir. 2005); Feliz, 182 F.3d at 87–88. We have expressed skepticism
that probable cause can be established by the combination of the
fact that a defendant sells drugs and general information from
police officers that drug dealers tend to store evidence in their
homes. See Ribeiro, 397 F.3d at 50-51 (citing United States v.
Schultz, 14 F.3d 1093, 1097 (6th Cir. 1994)); Feliz, 182 F.3d at87–88. However, the addition of specific facts connecting the
drug dealing to the home can establish a nexus. See Ribeiro, 397
F.3d at 51.
The warrant affidavits established that Bain had access
to unit D. True, they did so by relying on the unlawfully obtained
- 38 -
information establishing that the key fit the lock on unit D. But
as we have already explained, that defect did not undermine the
officers' ability to rely on the warrant. So, the only question
was whether Bain was staying there in the sense that one would
expect to find his possessions there. We think the affidavits
create a fairly strong inference that he was. Officer Connerney
stated that when Bain lived with his brother in Waltham, Connerney
regularly observed Bain's car parked outside. After Bain was
arrested for assaulting his brother, he told his probation officer
that he would live at his mother's residence in Arlington.
Connerney stated that he had never seen Bain at that residence and
had never seen Bain's car parked outside that residence. Connerney
also stated that since the controlled purchase on March 21,
officers had seen Bain's car parked on Webster Street in Malden,
near 131 Laurel Street, on several occasions. On two of those
occasions, March 28 and 29, officers could have reasonably inferred
that Bain stayed in the area overnight.
Bain also argues that even if there was probable cause
to believe he was living in unit D, the affidavits do not establish
probable cause to believe that evidence of his heroin dealing would
be found there. The affidavits raise the inference, though, that
Bain's practice was to deliver the product near a location where
he resided, first near his brother's apartment in Waltham, and
then near 131 Laurel Street after he moved. And at the moment
- 39 -
that he was arrested exiting the home, he was apparently carrying
(or a reasonable officer could infer he was carrying) a relatively
small amount of heroin. Neither his person nor his car contained
any of the items that a repeat drug seller very often has (a source
stash, cash, and records).13 Neither his altercation-induced exit
from his brother's apartment nor any other information in the
warrant affidavits even hinted at any other location that might
contain the expected accoutrements of an experienced dealer. All
in all, and whether or not this added up to probable cause of a
nexus to unit D, it was enough so that we cannot say that the
nexus-related evidence upon which the warrant rested was "so
lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable." Leon, 468 U.S. at 923.
d.
Finally, we consider whether the district court erred in
failing to suppress testimony at trial from two police officers
describing how they used Bain's keys to open the door to unit D
immediately after his arrest. We have concluded that the police
could not have relied in good faith on precedent to conduct this
warrantless search in the first instance, but that they could rely
in good faith on the warrant when conducting the later warranted
13 Although the affidavits do not make this negative claim,
we may infer it from the affidavits' failure to report finding any
evidence of this sort on Bain or in his car.
- 40 -
search. In short, the direct results of the warrantless key-turn
search were inadmissible, but that infirmity did not taint the
results of the subsequent warranted search. These conclusions
have the following consequence: Unless the warranted search also
revealed that the keys in Bain's possession at the time of his
arrest fit the lock on the door to unit D, it was error to admit
this testimony.
The government has not pointed us to any testimony
establishing that the police retested the keys on the lock after
the warrant issued. We have not found any.14 Therefore, the
district court should have suppressed the officers' testimony
about using Bain's keys to open the door to unit D immediately
after his arrest.
Nevertheless, we conclude that admitting this testimony
was harmless beyond a reasonable doubt. See United States v. Rose,
802 F.3d 114, 124 (1st Cir. 2015) (affirming denial of motion to
suppress because, even if defendant were correct that evidence
should have been suppressed because there was no independent
source, the "government [could] prove beyond a reasonable doubt
that the [putative] error complained of did not contribute to the
verdict obtained." (second alteration in original) (quoting United
14Since the apartment was leased to a person other than Bain,
and since officers remained at 131 Laurel Street while Connerney
sought the warrant, we cannot presume that anyone must have used
the keys to re-enter unit D.
- 41 -
States v. Green, 698 F.3d 48, 53–54 (1st Cir. 2012))). As in Rose,
although the government referred to the improperly obtained
evidence in both its opening and closing arguments, "the remaining
evidence was so overwhelming that, even if this evidence should
have been excluded, its inclusion did not affect the verdicts."
Id. As we have summarized above, the warranted search uncovered
overwhelming evidence that Bain resided, at least temporarily, in
unit D. His government-issued identification cards were in one of
the closets, along with a health insurance card, auto insurance
card, and AAA card, all in his name. The other closet contained
a large quantity of men's clothing and shoes in Bain's size,
including a sneaker containing $20 bills that the cooperating
witness had used to purchase heroin from Bain. A parking ticket
for Bain's car was found on a chair. We have no doubt that the
jury would have concluded that Bain possessed the drugs and gun in
unit D even if the court had excluded the testimony about his keys.
II.
Bain argues that even if the suppression motion properly
failed, the district court still should not have admitted at trial
evidence that there was a credit-card-making machine in one of the
closets of unit D. We review the judge's evidentiary ruling
admitting this evidence for abuse of discretion. See United States
v. Gemma, 818 F.3d 23, 35 (1st Cir. 2016); United States v.
Varoudakis, 233 F.3d 113, 118 (1st Cir. 2000).
- 42 -
As described in section I.A, supra, in the closet of one
of the bedrooms in unit D, police found a credit-card-making
machine inside an opaque trash bag along with boxes of blank cards.
A government witness testified that when Bain was arrested, the
police found four credit cards on his person. Another witness
testified that those credit cards were fake and that the machine
found in the closet could have been used to make them. In the
same closet as the credit-card-making machine, police found men's
sneakers, which contained around $7,000 in cash. Five of the $20
bills in the shoes were government funds that the cooperating
witness had used in the March 21 controlled buy.
Bain challenged the admission of the credit-card-making
machine in a motion in limine. The district court concluded that
"[t]he Government may present evidence regarding the credit card
making equipment for the purpose of connecting Defendant to the
apartment in question and establishing that Defendant had control
over the area in which the items were found." At trial the district
court gave two limiting instructions on this evidence. The first
was that the jury should not use the evidence to decide whether
"other wrongful acts did or did not occur." The second was that
the jury should not "consider the evidence as proof that the
Defendant [ha]s a bad character or any propensity to commit crime."
A proposal by the government to introduce evidence of a
defendant's other bad acts is subject to a two-part test. See
- 43 -
United States v. Hicks, 575 F.3d 130, 142 (1st Cir. 2009). "First,
a court must ask whether the proffered evidence has a 'special'
relevance, i.e., a non-propensity relevance." Id. Under
Rule 404(b), "[e]vidence of a crime . . . is not admissible to
prove a person's character in order to show that on a particular
occasion the person acted in accordance with the character." Fed.
R. Evid. 404(b)(1). But such evidence "may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident." Fed. R. Evid. 404(b)(2). If other bad acts
evidence has special relevance under Rule 404(b), the court must
consider whether the evidence should nevertheless be excluded
under Rule 403. See Hicks, 575 F.3d at 142. "The court may
exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice." Fed. R.
Evid. 403.
Bain first argues that the machine had no special
relevance under Rule 404(b). Conceding that "evidence tending to
tie an individual to a certain location might, in some instances,
have special relevance," he argues, first, that the testimony about
the capabilities of the machine did not match up with the nature
of the fake cards in his pocket. He also argues that the machine
did not connect him to unit D because there was no evidence that
- 44 -
the cards in his pocket were uniquely connected to the machine,
that he had made the cards himself, or that he knew they were fake.
Bain's first argument relies on a factual predicate that
one of the government's witnesses contradicted. A secret service
agent called by the government testified that the machine could
have been used to make the fake credit cards in Bain's pocket.
Bain argues, essentially, that this testimony was contradicted by
the witness's prior statement that the machine was a "card
embosser" combined with the (claimed) fact that the cards were not
actually embossed. As is often the case, this type of argument,
which highlights a contradiction in a witness's testimony and
insists that one statement should be believed over another, is an
argument about probative value. A jury could believe the agent's
statement that the machine could make the unembossed cards in
Bain's pocket notwithstanding the agent's reference to the machine
as a card embosser.15
Bain's latter arguments also attack probative value
rather than special relevance. See, e.g., United States v.
Gentles, 619 F.3d 75, 87 (1st Cir. 2010). The presence of the
machine in the unit and the fake credit cards in Bain's pocket,
combined with the testimony that the machine could make those
cards, made it more likely that he had been in the unit, that he
15 Bain's trial counsel chose not to cross-examine this
witness.
- 45 -
stored his possessions in the unit, that he stored his possessions
in that closet in particular, and thus that he controlled other
items in that closet, including the sneaker with the money in it.
This chain of inferences establishes special relevance. See Fed.
R. Evid. 401 (defining "relevant" evidence); United States v. Doe,
741 F.3d 217, 229 (1st Cir. 2013) (stating that evidence has
special relevance if "it is relevant for any purpose apart from
showing propensity to commit a crime"). The existence of other
possible chains of inference does not undermine special relevance;
it goes to probative weight.
Bain next argues that the machine's probative value was
substantially outweighed by the risk of unfair prejudice, so it
should have been excluded under Rule 403. He posits that the
probative value of the credit-card-making machine was slight
because it was cumulative of other evidence showing that he lived
at the unit (e.g., observations of him leaving the building, the
presence of his identification cards in the unit, the presence of
money used in one of the controlled buys in the unit). This small
probative value, he argues, was substantially outweighed by a risk
the jury would infer he was engaged in credit-card fraud and,
therefore, had a bad character.
When assessing the probative value of evidence under
Rule 403, a court must consider both whether the evidence was
offered to prove an issue that was in genuine dispute, and whether
- 46 -
the evidentiary point could have been made with other evidence
that did not present a risk of unfair prejudice. See United States
v. Ford, 839 F.3d 94, 109–10 (1st Cir. 2016); Varoudakis, 233 F.3d
at 122. The risk of prejudice from admitting a piece of evidence
may be "cabined" by a limiting instruction. See United States v.
Pelletier, 666 F.3d 1, 6 (1st Cir. 2011).
The Rule 403 issue is a close one. Bain's defense at
trial was that: (1) the recordings of the controlled buys did not
establish definitively that he sold drugs to the cooperating
witness; (2) the cooperating witness was unreliable; and (3) the
items in the unit were not his. He advanced these defenses both
in opening and in closing. The government did have abundant
evidence that Bain was connected to the unit, and the
identification cards were far more probative of Bain's control
over the drugs, gun, and ammunition found in one of the closets
than the credit-card-making machine. But Bain also denied that he
had engaged in the controlled buys, making it crucial to the
government's case to establish his control over the money in the
sneaker in the closet of the other bedroom. The credit-card-
making machine was probative on that point. In light of this
probative value, the issues disputed at trial, and the limiting
instructions, we cannot conclude that the district court abused
its discretion in admitting the credit-card-making machine. See
United States v. Smith, 292 F.3d 90, 99, 100–01 (1st Cir. 2002)
- 47 -
(noting that "[w]e usually defer to the district court's balancing
under Rule 403 of probative value against unfair prejudice" and
factoring the district court's limiting instruction into the
Rule 403 analysis).
III.
Finally, we consider the sentencing issue. Bain argues
that he did not have three prior convictions for "serious drug
offenses," and therefore did not qualify for the ACCA's fifteen-
year mandatory minimum sentence.16 He did not preserve this
argument below, so we review only for plain error.17
The ACCA provides:
In the case of a person who violates
section 922(g) of this title and has three
previous convictions by any court . . .
for . . . a serious drug offense . . .
committed on occasions different from one
another, such person shall be . . . imprisoned
not less than fifteen years . . . .
18 U.S.C. § 924(e)(1). A "serious drug offense" under the ACCA
includes, in relevant part,
16 He also argues that the fact of a prior conviction must be
found by a jury beyond a reasonable doubt. He acknowledges that
we are bound by precedent to reject this argument, see Almendarez-
Torres v. United States, 523 U.S. 224, 226–27 (1998), and raises
it only to preserve it for further review.
17The government argues that Bain waived--and did not merely
forfeit--his argument that he should not have been subject to the
ACCA mandatory minimum. We do not decide this question because we
assume, favorably to the defendant, that the plain error standard
applies.
- 48 -
an offense under State law, involving
manufacturing, distributing, or possessing
with intent to manufacture or distribute, a
controlled substance (as defined in section
102 of the Controlled Substances Act (21
U.S.C. 802)), for which a maximum term of
imprisonment of ten years or more is
prescribed by law[.]
Id. § 924(e)(2)(A)(ii).
The probation officer who prepared Bain's Presentence
Investigation Report (PSR) concluded that Bain had three prior
convictions for serious drug offenses: a 2002 conviction for
possession of cocaine with intent to distribute, a 2006 conviction
for possession of crack cocaine with intent to distribute, and a
2006 conviction for trafficking twenty-eight to one hundred grams
of cocaine, all under Massachusetts law. Bain did not object to
this conclusion, and the district court accepted it. On appeal,
Bain belatedly argues that his 2006 Massachusetts conviction for
trafficking cocaine, see Mass. Gen. Laws ch. 94C, § 32E(b), does
not fall under the definition of a "serious drug offense."
Determining whether Bain's prior conviction falls into
this definition requires looking at the Massachusetts statute
under which he was convicted and the relevant state precedent.
The statute reads:
Any person who trafficks in a controlled
substance [as defined to include cocaine] by
knowingly or intentionally manufacturing,
distributing or dispensing or possessing with
intent to manufacture, distribute or dispense
or by bringing into the commonwealth a net
- 49 -
weight of 18 grams or more of a controlled
substance as so defined, or a net weight of 18
grams or more of any mixture containing a
controlled substance as so defined shall [be
punished by a term of imprisonment that varies
depending on weight].
Id. The parties' dispute focuses on the form of trafficking
committed by "bringing into the commonwealth a net weight of 18
grams or more of [cocaine], or a net weight of 18 grams or more of
any mixture containing [cocaine]." Id. Bain argues that this
form of the offense is not a serious drug offense. He does not
dispute that the other forms of trafficking are serious drug
offenses.
We need not and do not determine whether Bain is right
that the "bringing into the commonwealth" form of the offense is
not a serious drug offense. Instead, we assume that he is right18
but conclude that he still cannot satisfy the plain error standard
because he cannot establish that the Massachusetts trafficking
statute is clearly "indivisible." We pause for a moment to explain
what that means.
When determining whether a prior conviction qualifies as
a predicate offense under the ACCA, we do not look at the specific
facts of the defendant's prior conviction. Instead, we use a
categorical approach, where we classify crimes as ACCA predicates
18There is a strong reason to think he is indeed correct
under our precedent. See United States v. Mulkern, 854 F.3d 87,
96–97 (1st Cir. 2017).
- 50 -
based on their legal definitions, rather than the facts of the
defendant's particular conviction. See Mathis v. United States,
136 S. Ct. 2243, 2248, 2251–52 (2016); Descamps v. United States,
133 S. Ct. 2276, 2283 (2013). The categorical approach is imposed
in part by the language of the ACCA, see Johnson v. United States,
135 S. Ct. 2551, 2562 (2015); Shepard v. United States, 544 U.S.
13, 19 (2005); Taylor v. United States, 495 U.S. 575, 600 (1990),
and in part by the Sixth Amendment concerns that would arise if
the imposition of the ACCA's mandatory minimum sentence were based
on the actual facts underlying prior convictions as found by the
sentencing judge, see Shepard, 544 U.S. at 24; Taylor, 495 U.S. at
601; United States v. Faust, 853 F.3d 39, 50 (1st Cir. 2017)
(citing Mathis, 136 S. Ct. at 2252, and Descamps, 133 S. Ct. at
2288).
The categorical approach proceeds in different ways for
different portions of the ACCA. To determine whether a conviction
for a crime falls within the "force clause" or the "enumerated
offense clause" of the violent felony definition, see United States
v. Starks, 861 F.3d 306, 314 (1st Cir. 2017) (defining these
terms), courts ask whether there is any (realistic) way of
committing the crime that does not satisfy the force clause or the
elements of the generic version of the enumerated offense. See,
e.g., Mathis, 136 S. Ct. at 2248 (enumerated offense clause);
Faust, 853 F.3d at 51 (force clause). To determine whether a
- 51 -
conviction for a crime falls within the now-invalidated "residual
clause" of the violent felony definition, see Starks, 861 F.3d at
314, courts asked whether the "ordinary case" of a conviction for
that crime created a risk of physical injury that exceeded a
difficult-to-specify threshold. See, e.g., Johnson, 135 S. Ct. at2557–59.
In this circuit, when analyzing whether a prior
conviction is a serious drug offense, we have followed the approach
used with the force clause and the enumerated offenses clause and
asked whether (as determined from the crime's definition and state
cases implementing that definition) every realistically possible
way of committing the offense satisfies the definition of a serious
drug offense. See United States v. Mulkern, 854 F.3d 87, 96–97
(1st Cir. 2017); United States v. Whindleton, 797 F.3d 105, 109
(1st Cir. 2015) ("Since Whindleton's record of conviction does not
specify on what theory he was convicted, we must ensure that any
form of the conviction would qualify as a 'serious drug offense'
under the ACCA."), cert. dismissed, 137 S. Ct. 23, cert. denied,
137 S. Ct. 179 (2016). This approach makes good sense, given that
the difficulties involved in applying the ordinary case approach
contributed to the conclusion that the residual clause was
unconstitutionally vague. See Johnson, 135 S. Ct. at 2557–58.
Not all criminal statutes define only a single crime.
"Some statutes . . . have a more complicated (sometimes called
- 52 -
'divisible') structure . . . . A single statute may list elements
in the alternative, and thereby define multiple crimes." Mathis,
136 S. Ct. at 2249. "A sentencing court thus requires a way of
figuring out which of the alternative elements listed . . . was
integral to the defendant's conviction . . . ." Id. "To address
that need, th[e Supreme] Court approved the 'modified categorical
approach' for use with statutes having multiple alternative
elements." Id. "Under that approach, a sentencing court looks to
a limited class of documents (for example, the indictment, jury
instructions, or plea agreement and colloquy) to determine what
crime, with what elements, a defendant was convicted of." Id.
(citing, inter alia, Shepard, 544 U.S. at 26). We call this
limited class of documents "Shepard documents."
Not all crimes that can be committed in multiple
different ways are divisible into multiple crimes with different
elements. There is "a different kind of alternatively phrased
law: not one that lists multiple elements disjunctively, but
instead one that enumerates various factual means of committing a
single element." Id. In order to determine whether a crime that
may be committed in multiple different ways is divisible, we must
be able to distinguish between crimes that have alternative
elements and crimes that have a single set of elements that may be
satisfied by different means. There are a number of different
ways of distinguishing elements from means, including looking at
- 53 -
jury unanimity requirements, relevant model jury instructions,
certain statutory provisions, and indictments. See Starks, 861
F.3d at 316.
Finally, "if state law fails to provide clear answers"
about what are elements and are means, "federal judges have another
place to look: the record of a prior conviction itself," Mathis,
136 S. Ct. at 2256, that is, the Shepard documents. If neither
state law nor the Shepard documents "speak[s] plainly" about
whether a crime is divisible, a sentencing court must assume that
it is not. See id. at 2257.
This case involves another layer of complexity: the
plain error standard. Generally, it is the government's burden to
prove that a defendant has three predicate convictions under the
ACCA. See Mulkern, 854 F.3d at 90. Thus, when a statute is
divisible and some forms of the offense are ACCA predicates and
some forms are not, the government bears the burden of proving
that the defendant was convicted of a form that is an ACCA
predicate. See id. But that burden shifts on plain error review.
When a defendant fails to preserve an objection to the government's
contention that a prior conviction for a divisible offense was for
the qualifying form of that offense, the defendant can only win on
appeal by proving that the conviction was not for the qualifying
form of the offense. See United States v. Serrano-Mercado, 784
- 54 -
F.3d 838, 846–49 (1st Cir. 2015), cert. denied, 137 S. Ct. 812(2017).19
This case presents a related issue of first impression:
What do we do on plain error review when state law lacks clarity
on the question of divisibility and the record lacks the Shepard
documents to which we might otherwise refer in an attempt to
resolve that ambiguity? Under Mathis, when state law is unclear
about the elements of a crime, a sentencing court may consult the
Shepard documents to determine whether the crime is divisible.
Normally, the government must introduce these documents and prove
that the crime is divisible in order to carry its burden of proving
that the defendant was convicted of a form of an offense that
qualifies as an ACCA predicate. See United States v. Dávila-
Félix, 667 F.3d 47, 55 (1st Cir. 2011). But in this case, like in
Serrano-Mercado, the government did not introduce any Shepard
documents because the defendant did not challenge his
classification as an armed career criminal. Thus, there are no
Shepard documents in the record on appeal. See Serrano-Mercado,
784 F.3d at 847–48. If we conclude that Massachusetts law is
unclear as to whether trafficking is divisible, we will have no
way of resolving the divisibility inquiry. Cf. id.
19This rule is subject to an exception not applicable here.
See Serrano-Mercado, 784 F.3d at 849.
- 55 -
We conclude that the Serrano-Mercado rule extends to
these circumstances. On plain error review, a defendant arguing
that a prior conviction was improperly counted as an ACCA predicate
because there is a non-qualifying form of the offense bears the
burden of proving either (1) that the offense is indivisible; or
(if the offense is not shown to be indivisible) (2) that the prior
conviction was for the non-qualifying form of the offense. Thus,
such a defendant can only win on plain error review in the absence
of Shepard documents if the prior conviction was for a crime that
has a non-qualifying form and its indivisibility can be clearly
ascertained without any need to look at Shepherd documents as
Mathis allowed.20
We reach this conclusion because abandoning the Serrano-
Mercado rule in these circumstances would produce anomalous
results. Imagine two defendants, both of whom fail to object to
their classification as armed career criminals and both of whom
have at least one predicate offense with a non-qualifying form.
Neither introduces any Shepard documents at sentencing. Both
appeal their sentences. By the vagaries of state law, it turns
out that one defendant's questionable predicate offense was
clearly divisible under state law at the time of the conviction,
while the other defendant's questionable predicate offense was not
20This burden-shifting rule retains the exception for the
circumstances outlined in Serrano-Mercado. See 784 F.3d at 849.
- 56 -
clearly divisible under state law at the time of the conviction.
Serrano-Mercado requires that the former bear the burden of proving
that his conviction was for the non-qualifying form of the
divisible offense using Shepard documents. We think the latter
should be likewise required to prove that the offense was not
divisible at the time of the prior conviction, also using Shepard
documents, under the procedure contemplated in Mathis. We decline
to create such an arbitrary distinction.
Having reached this conclusion, Bain's appeal can only
succeed on the plain error standard if the Massachusetts
trafficking statute was clearly indivisible at the time of his
conviction. But we conclude that, based on the arguments made to
us in this appeal, the statute's divisibility is unclear.21
Bain's argument that the statute was clearly indivisible
rests on several Massachusetts cases, which, he argues, establish
that a jury need not be unanimous about the type of trafficking
for which a defendant has been convicted. We do not read these
cases to establish any clear rule that bears on the statute's
divisibility.
The Massachusetts Supreme Judicial Court has not clearly
held whether the different ways of committing the trafficking
offense are different crimes with different elements or simply
21
Neither the defendant nor the government has pointed us
toward any model jury instructions for this statute.
- 57 -
different means of committing a single crime. It has described
the statute as "disjunctive, setting forth three categories of
trafficking: (1) manufacturing, distributing, or dispensing
fourteen grams or more of cocaine; (2) possessing with intent to
manufacture, distribute, or dispense fourteen grams or more; and
(3) bringing into the Commonwealth fourteen grams or more."
Commonwealth v. Roman, 609 N.E.2d 1217, 1218 (Mass. 1993); see
also Commonwealth v. Chappee, 492 N.E.2d 719, 727 (Mass. 1986).
It has not, however, clarified whether this disjunctive form bears
on the elements of the offense.
There is some suggestion in Roman that an indictment
need only allege "trafficking," without specifying the form of
trafficking. There, the SJC reviewed whether there was sufficient
evidence before the grand jury to indict the defendant for
trafficking. Id. at 1218. It concluded that there was
insufficient evidence for trafficking on an importation theory,
but sufficient evidence on a possession with intent to distribute
theory. Id. at 1219. The opinion does not quote the indictment,
however, so this hardly constitutes a clear holding.
The Massachusetts Appeals Court has also issued several
opinions that are ambiguous as to the elements of the offense.
Like Roman, one opinion suggests that the statute merely creates
one crime--"trafficking"--that can be committed in several
different ways. See Commonwealth v. Silva, 488 N.E.2d 34, 37
- 58 -
(Mass. App. Ct. 1986). But the court's only holding in Silva was
that the three ways of committing the first type of trafficking--
"manufacturing, distributing, or dispensing"--are, in fact,
disjunctive. Id. That holding does not help Bain.
Bain also points to several cases holding that evidence
adduced at trial or facts admitted in connection with a guilty
plea were sufficient to support a conviction for trafficking under
multiple theories. See Commonwealth v. Rodriguez, 855 N.E.2d 1113,
1123 (Mass. App. Ct. 2006) (sufficient evidence at trial), aff'd
877 N.E.2d 1274 (Mass. 2007); Commonwealth v. Panopoulos, No. 99-
P-2023, 2001 WL 695106, at *1 (Mass. App. Ct. June 20, 2001)
(unpublished disposition) (guilty plea); Commonwealth v. Manrique,
581 N.E.2d 1036, 1040 (Mass. App. Ct. 1991) (sufficient evidence
at trial). None of these cases demonstrate that the statute was
clearly indivisible. In Rodriguez, "[t]he judge instructed the
jury on two theories of cocaine trafficking: possession with the
intent to distribute, and 'bringing into' the Commonwealth." 855
N.E.2d at 1123 (quoting Mass. Gen. Laws ch. 94C, § 32E(b)(4)).
"The judge also told the jurors that they had to be unanimous as
to either or both theories, but there was no special verdict form."
Id. The court concluded that there was, nevertheless, no error in
submitting a general verdict form to the jury because "the evidence
[was] sufficient to sustain a guilty verdict under both theories."
Id. at 1124. Rodriguez points in both directions on divisibility.
- 59 -
The trial judge's instruction that the jury had to be unanimous as
to its theory of the case supports the conclusion that the offense
was divisible. Nothing in the court's decision suggests that this
instruction was incorrect or that the use of a general verdict
form obviated this instruction under state law. The conclusion
that there was no error in submitting a general verdict form given
that the evidence was sufficient to convict on either theory may
cut the other way, but it may also simply be an application of a
Massachusetts rule that a general verdict of guilty will stand if
there is sufficient evidence for all the theories put before the
jury. See, e.g., Commonwealth v. Oquendo, 982 N.E.2d 538, 542
(Mass. App. Ct. 2013) (citing Commonwealth v. Plunkett, 664 N.E.2d
833, 836 (Mass. 1996)). Rodriguez is simply ambiguous on this
point. Manrique and Panopoulos were just sufficiency challenges,
not challenges to a verdict form, and are to the same effect. See
Manrique, 581 N.E.2d at 1040; Panopoulos, 2001 WL 695106, at *1.
We find these Massachusetts authorities equivocal, in
some respects pointing toward indivisibility, in others toward
divisibility. The situation strikes us as one in which Mathis
suggests the court should consult Shepard documents to determine
if the crime is divisible. And the absence of such documents in
or as a supplement to the record means that Bain cannot carry his
burden on plain error review.
- 60 -
IV.
For the foregoing reasons, we affirm Bain's conviction
and sentence.
- 61 -