United States v. Grupee

United States Court of Appeals
For the First Circuit

No. 11-1291

UNITED STATES OF AMERICA,

Appellee,

v.

AUSTIN GRUPEE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Circuit Judge,
Souter, Associate Justice,*
and Boudin, Circuit Judge.

Charles W. Rankin, with whom Kerry A. Haberlin, and Rankin &
Sultan, were on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

June 20, 2012

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 SOUTER, Associate Justice. Austin Grupee was indicted

for possession of firearms and ammunition as a felon, 18 U.S.C.

§ 922(g)(1), and for possession of cocaine with the intent to

distribute, 21 U.S.C. § 841(a)(1). He pleaded guilty, but reserved

the right to appeal the denial of a motion to suppress evidence

found in his house and in a car parked in the driveway. He now

appeals both that denial and the sentence imposed. We affirm.

Between 2007 and 2009, the Southeastern Massachusetts

Gang Task Force1 investigated street gangs in New Bedford,

Massachusetts, and on May 28, 2008, Task Force officers applied for

a warrant to arrest one Desmond Roderiques, age 16, for drug

trafficking. They also applied for a warrant to search for “[a]ny

and all cellular telephones belonging to Desmond Roderiques, [and]

[a]ny and all paperwork relating to cellular phone ownership

including manuals and similar paperwork” at 54 Bedford Street, a

house that Roderiques shared with Grupee and several others.

In an attached affidavit, Massachusetts State Police

Trooper Jimi Grasso described how a witness cooperating with the

Task Force purchased drugs from Roderiques on November 9, 2007.

The witness called a “Montes Park Gang Member known to [the

witness] as ‘D’ on his cell phone, number (508) 738-0346.” At the

ensuing meeting the witness purchased crack cocaine for $300, in a

1
The task force comprises agents and officers from the
Federal Bureau of Investigation, the Massachusetts State Police,
the New Bedford Police, and the Massachusetts Parole Board.

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transaction captured on audio and video recordings. Police

identified “D” as Roderiques. The officers believed that

Roderiques still had the same cell phone, in part because they

called the number on May 28, 2008 and the phone was still active.

They believed Roderiques possessed a second cell phone (with a

different number), used in other recorded phone calls between

Montes Park Gang members. Trooper Grasso stated that Roderiques

had been arrested a number of times over the past few years and had

consistently given his address as 54 Bedford Street, New Bedford,

where police had often seen him coming and going, and where he was

listed as living on his learner’s permit from the Massachusetts

Registry of Motor Vehicles, issued on August 9, 2007.

A magistrate judge issued the arrest and search warrants,

which Task Force officers executed the following day, when they

arrested Roderiques, escorted Grupee and other individuals present

to the living room, and searched the house. The officers

discovered guns, drugs, and drug paraphernalia, as well as two cell

phones, in Roderiques’s room. In Grupee’s room, they found a blue

plastic storage bin with Grupee’s personal papers as well as three

pistols (including a 9 millimeter), and several rounds of

ammunition.

During the search inside 54 Bedford Street, a State

Police drug detection dog alerted toward a black Infiniti M45

parked in the driveway. The officers then paused while they

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applied for two additional warrants: one to search the house for

firearms, drugs, and related materials, and another to search for

the same in the car. Trooper Grasso’s second affidavit described

the earlier search and its fruits so far, and stated that “[a]n MSP

[Massachusetts State Police] drug detection K-9 also assisted at

the scene and the dog alerted on the exterior of [the Infiniti].”

The warrants were issued, the officers searched the car, and in the

rear seat they found a black gym bag with a bus ticket in Grupee’s

name inside, a bag of cocaine, and a magazine of 9 millimeter

ammunition. The second search of Grupee’s room uncovered more

drugs and records of drug sales.

I

Grupee argues that the facts presented to the magistrate

were too thin to support any of the search warrants, but we think

the magistrate had the requisite “‘substantial basis’ for

concluding that probable cause existed.” United States v. Ribeiro,

397 F.3d 43, 48 (1st Cir. 2005). As to the first search warrant,

we agree with the magistrate and the district court that there was

reasonable cause to think that Roderiques still possessed the cell

phone used to arrange the November 9, 2007 drug sale and lived at

54 Bedford Street, as of May 28, 2008. To begin with, there was

abundant evidence tying the cell phone to Roderiques. The

cooperating witness knew a drug salesman, “D,” who could be reached

at the (508) 738-0346 number, and he called the number and arranged

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to meet “D” at a certain spot. Desmond Roderiques showed up there

and sold drugs to the witness. Grupee says that Roderiques may

have completed the transaction after another “D” took the call, but

this is pure fancy, unsupported and unlikely; the facts that

Desmond Roderiques appeared where “D” promised to be and sold drugs

as “D” promised to do are good reasons to believe that he is “D.”

Grupee argues next that, even if the magistrate had

enough evidence that in November Roderiques had a cell phone with

a particular number that he used in a drug transaction, by next May

that evidence had gone too stale to give probable cause to infer he

still had it. He points out that drug dealers often toss phones

away to thwart detection, and Roderiques was recorded speaking on

a second one two months after the November call. But all of this

may be granted without implying it was unreasonable to think

Roderiques would still be using the same phone six months later.

He was in business, after all, and some customers presumably knew

“D” by the November number; he had to maintain some degree of

continuity or risk losing buyers. The fact that at some point he

used another cell phone to speak to other members of the Montes

Park Gang is itself equivocal; drug dealers may use different

phones for work and personal use, or for customers and internal

business. And there was some confirmation that Roderiques was

maintaining continuity, in the Task Force’s determination that the

number used in the arranged transaction was still active on May 28,

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even though that fact alone did not prove conclusively that “D” was

still the one answering calls to (508) 738-0346.

Grupee’s staleness argument does not stop there, however,

but goes also to the connection of the cell phone to 54 Bedford

Street as the house where Roderiques lived. Again, the facts are

against him. He had been arrested and stopped for field

interrogations over the years before the warrant application, and

had given 54 Bedford Street as his address each time. His

learner’s permit, issued in August of 2007, gave that address; and

the police had seen him coming and going at the house a number of

times. And even if all this activity had occurred before getting

the August 2007 driving permit (which the magistrate was not told),

there would nonetheless be reasons to think that he was still

living at 54 Bedford Street the following May; people move from

time to time, of course, but not so frequently that the evidence

here can be considered stale, certainly not with an affidavit

showing that he was only 16 in 2008 and so probably less mobile

than an adult would have been. In sum, there was a substantial

basis to find probable cause that the cell phone used in the drug

transaction would be in Roderiques’s possession, and be found at 54

Bedford Street on May 28, 2008.

This conclusion disposes of the challenge to the second

search warrant, which is predicated on the invalidity of the first.

Thus, when the affidavit supporting the second application

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described the guns, drugs, and drug paraphernalia the police had

already seen while searching 54 Bedford Street, it depended on

observations lawfully made and properly counted in showing probable

cause.

As for Grupee’s challenge of the third search warrant,

this one for the black Infiniti M45, his claim that the officers

failed to show probable cause to believe it contained any

contraband or evidence of a crime again suffers in part from his

failure to undermine the first warrant and the observations by the

police who executed it. The affidavit attached to the third

warrant application describes a car parked in the driveway of a

house in which both firearms and drugs had been found. It was

registered to a Raquel Senna, whose listed address of 54 Bedford

Street suggested that the car might well be connected with the

activities in the house.

But Grupee’s attack has a second prong, directed to the

supporting affidavit’s additional statement by the state trooper

that an “MSP drug detection K-9 . . . alerted on the exterior of

[the Infiniti].” Grupee points out that the only information given

to the magistrate about the dog’s capacity to alert reliably and

without excessive false positives was this laconic statement that

the dog was a Massachusetts State Police drug detection dog. The

affidavit says nothing about the State Police’s standards for

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training drug-sniffing dogs or about the particular dog’s success

and error rate.

While we do not think Grupee’s point is fatal to the

warrant, neither is there anything captious about it. The

reasonableness of relying on the behavior of a police dog depends

on what one knows about the dog and the person who handles it, see

United States v. Race, 529 F.2d 12, 14 (1st Cir. 1976); United

States v. Berry, 90 F.3d 148, 153 (6th Cir. 1996), and the police

can provide this sort of information in a readily available résumé

of general certification standards and particular performance

statistics, dog by dog, to be attached to a warrant application on

a moment’s notice. Here, in contrast, the magistrate was told only

that a dog was used by the Massachusetts State Police to sniff out

narcotics.

But parsimonious though this disclosure was, we think it

passes muster under existing circuit precedent on searches

authorized by warrant, which holds that describing a drug detection

dog as “trained” and in the company of a drug detection agent is

sufficient to allow a magistrate “reasonably [to] infer” that a

trained law enforcement dog has “attained a high degree of

proficiency in detecting the scent of narcotics.” United States v.

Meyer, 536 F.2d 963, 966 (1st Cir. 1976). True, the affidavit here

did not say the dog was “trained,” as it did in Meyer. But “upon

a common sense and realistic reading,” an affidavit by a state

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police officer on the scene of a drug raid, attesting that the

Massachusetts State Police is the dog’s “employer” (as Grupee puts

it), amounts to the same showing of reliability accepted in Meyer.

And, as already noted, the third warrant did not rest on the sniff

alone; the suspicion raised by the drugs and weapons found in the

car owner’s house formed a pattern with the canine alert to provide

the magistrate with a substantial basis to find probable cause for

the car search.

Indeed, even if the extant precedent were less clear, the

good faith exception to the exclusionary rule would stand in the

way of suppressing any evidence. With Meyer on the books and the

account of the evidence found in the house, the Task Force officers

acted in what the preceding discussion shows was “objectively

reasonable reliance” on the search warrant, United States v. Leon,

468 U.S. 897, 922 (1984). At the least, that is, the auto warrant

was not “so lacking in indicia of probable cause as to render

official belief in its [validity] . . . unreasonable,” and the

search consequently illegal. Leon, 468 U.S. at 923.

II

Grupee also challenges his sentence, which he says was

based on an advisory Sentencing Guidelines range of 110 to 137

months.2 The district court determined this range by calculating

2
Grupee was given the below-guideline sentence of 102 months’
imprisonment, which the district court said it settled upon “in
light of the sentences imposed on other similarly situated

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the base offense level as 22, as provided by U.S. Sentencing

Guidelines Manual § 2K2.1(a)(3), which sets that level for offenses

that “involved a . . . semiautomatic firearm that is capable of

accepting a large capacity magazine” when “the defendant committed

any part of the instant offense subsequent to sustaining one felony

conviction of . . . a crime of violence.”

The crux of the issue (which we review de novo, United

States v. Santos, 363 F.3d 19, 22 (1st Cir. 2004)), is the

application of “crime of violence,” which is defined as

“any offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that
(1) has as an element the use, attempted use,
or threatened use of physical force against
the person of another, or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.”

U.S. Sentencing Guidelines Manual § 4B1.2(a). Grupee argues that

neither his conviction for assault and battery of a police officer

(ABPO) under Mass. Gen. Laws ch. 265, § 13D, nor his conviction for

resisting arrest under Mass. Gen. Laws ch. 268, § 32B, was a “crime

of violence” under the Guidelines. But our own recent precedent

addressing exactly these crimes is squarely against him.

defendants.” Because we hold there was no error in the initial
guideline calculation, we do not address the government’s claim
that any error in setting the range was harmless because the
district court would have imposed a 102-month sentence in any
event.

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 In United States v. Dancy, 640 F.3d 455 (1st Cir. 2011),

a panel of this court determined that ABPO as defined by the

Massachusetts statute is a “violent felony” for purposes of the

Armed Career Criminal Act (ACCA), a term “nearly identical in

meaning” to “crime of violence” under the Sentencing Guidelines,

United States v. Holloway, 630 F.3d 252, 254 n.1. (1st Cir. 2011);

see 18 U.S.C. § 924(e)(2)(B) (defining “violent felony” in language

virtually identical to § 4B1.2(a) of the Guidelines). The panel

applied the test established in Begay v. United States, 553 U.S.

137, 142-45 (2008), and concluded that committing ABPO raised

roughly the same risk of bodily harm as the offenses enumerated in

18 U.S.C. § 924(e)(2)(B)(ii), to which it was similar in kind.

Dancy, 640 F.3d at 468-70. It thus qualified as a violent felony

under the ACCA’s residual clause, covering offenses that “otherwise

involve[] conduct that presents a serious potential risk of

physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Given

Dancy, ABPO is a crime of violence under the identical residual

clause of U.S. Sentencing Guidelines Manual § 4B1.2(a).

Grupee would have us look behind Dancy because he says

the case applied the Begay test incorrectly, but this is beside the

point, since we are bound by a prior panel decision, absent any

intervening authority. See, e.g., Peralta v. Holder, 567 F.3d 31,

35 (1st Cir. 2009). Grupee tepidly suggests that Sykes v. United

States, 131 S.Ct. 2267 (2011), undermines Dancy by drawing a line

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between crimes committed knowingly or intentionally and crimes,

like ABPO, which can be committed recklessly, see id. at 2276. But

Sykes merely indicates that courts need not apply Begay to

intentional or knowing crimes; Begay still governs the

characterization of other crimes, and Dancy applied its test in

holding that even the reckless variant of ABPO is a violent felony.

Although the district court came out the other way on

ABPO, this did not matter to the result it reached because one

“crime of violence” is all that is needed under § 2K2.1(a)(3), and

it treated Grupee’s other prior felony of resisting arrest as a

“crime of violence” under the Guidelines. Current precedent

agrees, this time United States v. Almenas, 553 F.3d 27, 32-35 (1st

Cir. 2009). Grupee again attacks the panel decision as error in

applying the Begay test, a dubious assertion we do not consider,

again owing to the law of the circuit doctrine. Grupee further

attacks Almenas as being at odds with the subsequently-decided

Chambers v. United States, 555 U.S. 112 (2009). But this court

explicitly rejected that claim in United States v. Weekes, 611 F.3d

68, 72-73 (1st Cir. 2010).

Affirmed.

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