United States v. Faust
853 F.3d 39
| 1st Cir. | 2017Background
- Police obtained a warrant to search Apartment 4‑R and the persons of Todd Faust and Kristina Leighty based on an affidavit linking them to a nearby robbery and showing Leighty had given a stolen watch and rolled pennies to a third party the same day.
- Officers executed the warrant; Faust fled upstairs to Apartment 5‑R, dropped a backpack, was apprehended attempting to escape, and was handcuffed; officers recovered the backpack containing a loaded 9mm pistol and ammunition.
- Faust made pre‑Miranda remarks on the scene and was later transported to the station, Mirandized, and gave a post‑Miranda confession admitting involvement in the robbery and handling the pistol.
- Faust moved to suppress the physical evidence (challenging the search/entry) and his station‑house statements (arguing an impermissible two‑step interrogation). The district court denied suppression.
- At sentencing the district court applied the ACCA 15‑year enhancement based on two drug predicates (undisputed) and two contested state convictions: resisting arrest (Mass. Gen. Laws ch. 268, §32B(a)) and assault & battery on a police officer (ABPO) (Mass. Gen. Laws ch. 265, §13D). Faust appealed suppression and the ACCA enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause / scope of search and entry | Faust: affidavit did not establish probable cause to search his person; officers unlawfully entered Apartment 5‑R. | Government: affidavit provided nexus to Faust; officers lawfully pursued fleeing suspect and recovered abandoned backpack. | Denied suppression — magistrate had substantial basis for probable cause; exigent‑pursuit/abandonment justified entry/recovery. |
| Miranda two‑step interrogation | Faust: pre‑Miranda on‑scene questioning was part of a deliberate two‑step tactic to circumvent Miranda, tainting later station‑house confession. | Government: no deliberate Seibert‑style tactic; settings, timing, and content differed; post‑Miranda waiver was knowing and voluntary (Elstad). | Denied suppression — no deliberate two‑step scheme; post‑Miranda statements admissible under Elstad and Seibert analysis. |
| ACCA predicate — Resisting arrest (Mass. §32B) | Faust: statute covers non‑violent conduct (e.g., stiffening arm) so it cannot categorically be a violent felony and is not divisible. | Government (earlier precedent): resisting previously treated as divisible and as a predicate. | Rejected as ACCA predicate — statute covers non‑violent conduct; not divisible under Mathis, so conviction cannot count. |
| ACCA predicate — ABPO (Mass. §13D / §13A) | Faust: ABPO is overbroad because offensive battery can be non‑violent; plea/Shepard materials do not plainly show the form admitted. | Government: ABPO divisibility and Shepard records may show a violent form; district court relied on precedent to count it. | Remanded — ABPO is divisible between intentional and reckless forms but not between harmful/offensive within intentional; district court must review Shepard documents to determine which form Faust necessarily admitted; if unclear, ABPO cannot be used as an ACCA predicate. |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (Miranda warning and waiver framework)
- Oregon v. Elstad, 470 U.S. 298 (U.S. 1985) (post‑warning statements admissible absent coercion if waiver knowing and voluntary)
- Missouri v. Seibert, 542 U.S. 600 (U.S. 2004) (plurality) (two‑step interrogation may invalidate post‑warning confession under certain circumstances)
- Taylor v. United States, 495 U.S. 575 (U.S. 1990) (categorical approach for predicate offense analysis)
- Shepard v. United States, 544 U.S. 13 (U.S. 2005) (Shepard documents limit what sentencing court may consult to identify offense of conviction)
- Descamps v. United States, 133 S. Ct. 2276 (U.S. 2013) (limits on modified categorical approach; elements v. means inquiry)
- Mathis v. United States, 136 S. Ct. 2243 (U.S. 2016) (clarified divisibility: distinguish elements from means; guidance on when modified categorical approach applies)
- Johnson v. United States, 135 S. Ct. 2551 (U.S. 2015) (invalidated the ACCA residual clause as unconstitutionally vague)
- United States v. Carrigan, 724 F.3d 39 (1st Cir. 2013) (prior First Circuit treatment of resisting arrest as divisible)
- United States v. Dancy, 640 F.3d 455 (1st Cir. 2011) (prior First Circuit decision regarding ABPO as ACCA predicate)
- United States v. Tavares, 843 F.3d 1 (1st Cir. 2016) (analysis of Massachusetts assault and battery divisibility)
- United States v. Whindleton, 797 F.3d 105 (1st Cir. 2015) (standard of review for predicate qualification under ACCA)