561 F.3d 55 (1st Cir. 2009), 06-1978, United States v. Rheault

Docket Nº:06-1978.
Citation:561 F.3d 55
Party Name:UNITED STATES of America, Appellee, v. Nicholas RHEAULT, Defendant, Appellant.
Case Date:March 27, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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561 F.3d 55 (1st Cir. 2009)

UNITED STATES of America, Appellee,


Nicholas RHEAULT, Defendant, Appellant.

No. 06-1978.

United States Court of Appeals, First Circuit.

March 27, 2009

Heard Dec. 4, 2007.

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Edward J. Juel, for appellant.

David Hennessy, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before LIPEZ and HOWARD, Circuit Judges, and GELPÍ,[*] District Judge.

HOWARD, Circuit Judge.

Appellant Nicholas Rheault (" Rheault" ) was charged with one count of conspiring to distribute ecstasy, three counts of possession of ecstacy with intent to distribute, and one count of being a felon in possession of a firearm.1 Rheault moved to suppress the drugs and gun that formed the basis of the charges, claiming that they were discovered pursuant to a search that violated his Fourth Amendment rights. The district court denied the motion, and Rheault subsequently pled guilty to all five counts, conditioned on his right to appeal the denial of the suppression motion.2 The court sentenced Rheault to 132 months in prison, followed by three years of supervised release. Rheault appeals from the denial of the motion to suppress and his sentence. We affirm.


A. The arrest and search

The facts essential to deciding this appeal are largely not in dispute. In late 2004 Donald Whitney met on several occasions with a drug purchaser to discuss the sale of ecstasy tablets. Unbeknownst to Whitney, the buyer was an undercover agent of the U.S. Drug Enforcement Agency (" DEA" ). In connection with each sale, agents saw Whitney enter a three-decker at 122-124 Middle Street in Leominster, Mass.-later determined to be Rheault's residence-and then proceed to meet the undercover agent to consummate the sale. On one occasion, Whitney mentioned that his supplier lived there. On another, agents saw Rheault circling the

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location in his car where the drug deal was taking place inside. Agents also observed Rheault watching a sale from a distance.

DEA agents arrested Whitney on February 1, 2005. He quickly agreed to cooperate with them. Following the agents' instructions, Whitney called Rheault several times to arrange a purchase of 200 ecstacy pills. Here the versions of events diverge slightly. At his change-of-plea hearing, Rheault denied that he agreed to this sale. The government claims to the contrary, and further states that Rheault told Whitney that he could not deliver the drugs until the following morning. Regardless, the agents did not want to delay Rheault's arrest. Accordingly, after procuring an arrest warrant they set off to apprehend him, forewarned by Whitney that Rheault carried a nine-millimeter handgun with a laser sight.

Upon their arrival at 122-124 Middle Street, agents tried to lure Rheault outside by having his car towed. That proved ineffective, so agents entered the building by a back stairway to Rheault's second-floor apartment. One of Rheault's two roommates, Alex Archambault, opened the apartment door and was greeted by agents with drawn weapons. After restraining Archambault, determining that Rheault was not in the apartment, and hearing sounds from above, the agents asked for and received Archambault's key to a door that led to a different stairway. Agents went up to a third-floor landing, where they found Rheault attempting to hide behind a bookcase and took him into custody. In a disabled washing machine 3 about seven feet from Rheault's hiding spot, agents discovered a nine-millimeter pistol with a laser sight, a bag containing 44 ecstasy pills, ecstasy in powder form, cocaine and LSD.

B. The apartment

Because the layout of 122-124 Middle Street is crucial to our inquiry, we recount the physical characteristics of the premises, based on testimony presented at the two-day suppression hearing.

As previously noted, 122-124 Middle Street was a three-story building. There was one apartment on each floor, and Rheault lived in the second-floor apartment. The front door of the building-which was left unlocked-opened to a landing that contained the mailboxes for the three apartments. From this landing, two doors were accessible. One door was to the apartment on the first floor; the other led to an interior stairway shared by the second and third floor apartments (" the front stairway" ). This interior stairway door had a lock accessed from the outside by a skeleton key 4, and a deadbolt lock that could only be accessed from the inside, in other words, only by tenants or other people already within the apartments on the second or third floor. There was conflicting testimony as to whether this deadbolt was usually locked. The landlord testified that the deadbolt was not supposed to be locked, while Rheault's roommate, Archambault, testified that it was almost always locked.5 Both Rheault's apprehension and the discovery of the gun and drugs in the washing machine

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took place on the third floor landing of the front stairway.

The more accessible stairway was in the rear of the building. It served all three apartments and was not locked from the street. While tenants were permitted to use both stairways, the testimony suggested that tenants on the second and third floor relied almost exclusively on the rear stairway, as did delivery persons and guests. The two stairways were not connected. Thus, to get from the back stairway to the front stairway, it was necessary to go through the second or third-floor apartment, as the officers did when they sought to arrest Rheault.

The landlord testified that he occasionally used the front stairway to allow, for example, cable television personnel access to the basement. He also testified that tenants were not permitted to use the front stairway and landings for storage, as such use would create a fire hazard.6 Instead, each apartment had its own storage area, which was large enough for a washing machine or bookshelf. On occasion, he had asked tenants to remove stored items...

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