United States v. Kennedy
881 F.3d 14
1st Cir.2018Background
- Kennedy, on federal supervised release, was identified via BOLO as a suspect in a Quincy larceny involving a stolen safe containing ammunition; officers surveilling his girlfriend’s address saw a gray Honda Fit matching the BOLO and Kennedy exiting it.
- Officers recognized Kennedy, attempted arrest; he fled but was caught, handcuffed, and removed from the scene while the Honda Fit remained.
- An officer observed through the rear window clutter and a partially covered, box-shaped, gray-metallic object on the backseat consistent with a safe; officers towed and searched the car without a warrant and found a forced-open safe with ammunition and drug paraphernalia.
- Kennedy moved to suppress the vehicle search as Fourth Amendment violation; the district court denied the motion (automobile exception and alternative inventory/probable-cause grounds); Kennedy pleaded guilty conditionally to preserve the suppression claim.
- At sentencing the government sought ACCA treatment; the district court counted two prior Massachusetts ADW convictions plus one or more prior assault-and-battery-with-dangerous-weapon (ABDW/AA&B) convictions as violent felonies and imposed the 15-year ACCA mandatory minimum; Kennedy appealed suppression and the ACCA enhancement.
- This panel affirmed the denial of suppression (automobile exception/probable cause) but vacated the ACCA enhancement because the record did not plainly show Kennedy’s prior ABDW plea was to the intentional (violent) variant rather than the reckless variant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether warrantless search of the Honda Fit was unreasonable under the Fourth Amendment | Government: Officers had probable cause under the automobile exception because BOLO + in-view clutter and box-shaped metallic object made it fairly probable evidence of the larceny was in the car | Kennedy: No specific link between car and larceny; 10–12 hour lapse made the BOLO stale and insufficient for probable cause | Denied suppression: totality (BOLO corroborated by visible box-like object and clutter) created probable cause under the automobile exception; conviction affirmed |
| Whether a prior Massachusetts ABDW conviction counted as an ACCA violent felony | Government: Plea colloquy facts (assault, punching, kicking) and admissions established intentional ABDW qualifying as a violent felony; district court may infer plea was to intentional form | Kennedy: Record (charging paper, clerk’s entry, plea transcript) is ambiguous as to mens rea; ABDW can be reckless and Reckless ABDW is not an ACCA violent felony | Vacated ACCA enhancement: under the modified categorical approach, Shepard-limited records did not plainly show Kennedy pled to intentional (violent) ABDW, so ACCA predicate not established; remand for resentencing without ACCA enhancement |
Key Cases Cited
- Ornelas v. United States, 517 U.S. 690 (standard of review for suppression: facts for clear error, legal conclusions de novo)
- California v. Acevedo, 500 U.S. 565 (automobile exception to warrant requirement)
- Shepard v. United States, 544 U.S. 13 (limits on documents sentencing courts may consult under the modified categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (divisibility inquiry and Taylor/Shepard limits on using underlying facts)
- Descamps v. United States, 570 U.S. 254 (prohibits using underlying facts to determine which statutory alternative formed the basis of a prior conviction)
- United States v. Tavares, 843 F.3d 1 (First Circuit discussion of intentional vs. reckless ABDW and violent-felony analysis)