US v. Daoust

Decision Date11 December 1989
Docket NumberCrim. No. 88-00015-B.
Citation728 F. Supp. 41
PartiesUNITED STATES of America v. Rodney J. DAOUST, Defendant.
CourtU.S. District Court — District of Maine

Richard S. Cohen, U.S. Atty., James McCarthy, Asst. U.S. Atty., Bangor, Me., for plaintiff.

Leonard Sharon, Lewiston, Me., for defendant.

MEMORANDUM DECISION ON MOTION TO SUPPRESS

CONRAD K. CYR, District Judge.*

A three-count superseding indictment charges the defendant with making false representations to obtain a firearm and with receiving and possessing firearms following a felony conviction. The defendant moves to suppress evidence, and the fruits of evidence, seized in connection with a warranted search of his residence.

I. FINDINGS OF FACT

As a known associate of Robert Whittemore, a suspected cocaine dealer, the name of Rodney Daoust first surfaced in mid-1987 in connection with a federal investigation into cocaine distribution in Maine. Senior Special Agent Kenneth MacMaster and Detective Michael Sperry, both of the Maine State Police MSP, and Lt. Timothy Bourassa, of the Rumford Police Department, went to the Daoust residence on August 11, 1987, to interview Daoust in connection with the Whittemore investigation. The defendant's house is situated at the end of a driveway which turns off a dirt road approximately one mile from Route 2 in Carthage, Maine. The driveway ends near the left front (southwest) corner of defendant's house. Upon their arrival the officers observed no telephone or power lines leading to the house.1 There were toys outside the house, but no vehicles in the driveway. Detective Sperry knocked several times on the double-glass cellar door near the southwest corner of the house. Receiving no response, the officers left.

On August 21, 1987, at about noon, Sperry returned to defendant's house with MSP Detective William Draper. The residence appeared just as it had on August 11, and again there was no vehicle in the driveway. The officers first knocked on the cellar door. Upon receiving no response and observing that the front door, which is located at the mainfloor level on the south side of the house, was approximately five or six feet above ground level, and inaccessible, the officers decided to walk around the house to look for an accessible mainfloor entrance.

Sperry and Draper proceeded from the southwest corner of the house, where the cellar door is located, along the west side. The ground along the west side of the house slopes steeply upward to such an extent that the cellar wall, which is completely exposed along the entire south wall of the house, is completely covered by earth along the rear (north) wall. There is no path around the house, nor is the perimeter of the house landscaped in any way. Upon determining that there was no door on the north side of the house, Sperry and Draper continued along the north wall to look for a door on the east side.

While walking along the north wall Sperry looked into a window near the northeast corner of the house to see if anyone was inside. The window ledge is approximately six feet above ground level, and Sperry and Draper, walking side by side, came within about three feet of the window as they were walking past it. Approaching and peering up through the window, Sperry saw a semi-automatic handgun fastened between the exposed kitchen ceiling joists which run parallel to the east side of the house. The view through the window was unobstructed by shades, curtains, shutters, vegetation or any other visual obstruction. Although there was a fly screen on the window, it did not obstruct Sperry's view into the house. From his vantage point, which required him to look up at an angle through the window, Sperry would have been able to see a person standing near the window, but all he in fact saw was the ceiling area of the kitchen. Sperry did not use any device, or otherwise attempt, to enhance his view. Sperry asked Draper to look through the window, and Draper immediately saw the handgun.

Sperry and Draper continued around the north side of the house looking for a mainfloor entrance, proceeding from the north side, along the east side and then back to the south side. The officers left the premises immediately upon learning that there was no accessible mainfloor entrance.

At about four or five o'clock that afternoon, Sperry returned to the Daoust residence, knocked on the cellar door, and left immediately after receiving no response.

Sperry returned to the residence on August 24, 1987, this time with Special Agent MacMaster. There were no vehicles in the driveway. After knocking on the cellar door to no avail, Sperry and MacMaster proceeded to the northeast corner of the house, where Sperry asked MacMaster to look through the window. Standing a few inches from the window, MacMaster saw the handgun between the ceiling joists. Sperry's stated intention in pointing out the location of the handgun was to forewarn MacMaster in the event MacMaster were to return to the residence without Sperry. Immediately afterward the officers left the premises.

En route to Augusta, Sperry and MacMaster decided to find out whether Daoust had ever been convicted of a felony. They confirmed that Daoust had been convicted of felony burglary, that he had not received an executive pardon and that he was over 18 years of age when he committed the felony offense. The officers learned also that the defendant had been convicted in 1982 of disorderly conduct and class D assault. Local law enforcement officials informed them that the defendant had been divorced and that he lived alone.

Sperry and MacMaster believed that the defendant was in violation of a Maine statute which criminalizes the possession of a firearm by a convicted felon. See Me.Rev. Stat.Ann. tit. 15, § 393. Accordingly, on August 24 MacMaster prepared an affidavit and procured a warrant to search the Daoust residence for "a semi-automatic handgun, blue steel in color," and nothing else.

Prior to executing the search warrant, MacMaster informed the state district attorney that Daoust was under investigation for firearms violations. MacMaster contacted the United States Attorney's office as well. It is normal procedure for State of Maine law enforcement officers assigned to the federal-state anti-drug task force to contact the U.S. Attorney's office concerning suspected criminal activity which may be subject to prosecution by both state and federal authorities.

The search warrant was executed on August 25, 1987. Sperry, Bourassa, Draper and MSP Trooper Dennis Appleton participated in the search, with MacMaster in charge. All of the officers had prior experience in the execution of search warrants. Before going to the Daoust residence, the search party met near Jay, Maine to plan the search. At the meeting it was stated that there was no way of knowing whether the officers would find anyone at the residence, and that it would be necessary to conduct a routine safety sweep for concealed persons immediately upon entering the premises in order to assure that the premises were safe to work in. The safety sweep was considered necessary due to the presence of at least one firearm on the premises of a convicted felon with a criminal record for assaultive conduct. MacMaster gave the officers their duty assignments, assigning Draper and Bourassa responsibility for conducting a safety sweep of the second floor.

The officers arrived at the Daoust residence at 7:00 a.m. There were no vehicles in the driveway, and no lights were visible in the house. The officers wore raid jackets and hats bearing MSP insignia. After MacMaster knocked on the cellar door, and yelled "police," to no avail, the officers fanned out around the house. Sperry went to the rear of the house and looked through the northeast corner window to confirm that the handgun was still located between the ceiling joists. At about the same time, MSP Trooper Appleton observed the handgun through a kitchen window on the east side of the house.

The officers discussed the least destructive means of forcing entry. They decided to try a cellar window on the east side of the house. Draper found and held a board against the window frame, while Sperry placed his foot against the board to force the window inward. The force bent the latch securing the top of the window, but did not break either the latch or the window. Sperry crawled through the window and let the other officers in through the cellar door.

Immediately after entering the cellar, Bourassa and Draper proceeded to the second floor to conduct a safety sweep for concealed persons. Its purpose was to assure the safety of the officers, and any occupant, by locating concealed persons and conducting them to a central location on the premises while the officers were seizing the handgun and preparing an inventory. The officers considered a routine safety sweep necessary because they knew that there was at least one firearm in the house, and they could not be sure that the residence was unoccupied.

Immediately upon entering through the cellar door, Bourassa and Draper proceeded to the main floor and on to the second floor, which consists of a bedroom and an unfinished room. Draper was experienced in the securing of search premises, and he knew that he and Bourassa were to conduct a superficial sweep for any person who might be concealed on the second floor, and that he was to yell "secure" if they found no one. The superficial safety sweep was restricted to places where a person could have been concealed. The sweep was swiftly completed, within about 30 seconds. There was no search for evidence, and no occupants were found.

During the sweep of the second floor bedroom, Draper saw three long guns. Two of the guns — a 12-gauge Winchester pump shotgun and a Remington model 30-06 rifle (which was inside a rifle case) — were observed leaning against a dresser. Another gun — a single-shot, 12-gauge Revelation model 350 shotgun — was partially...

To continue reading

Request your trial
15 cases
  • US v. Conley
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • January 7, 1994
    ...v. Andrus, 775 F.2d 825, 844 (7th Cir.1985); United States v. Bradley, 455 F.2d 1181, 1185 n. 8 (1st Cir.1972); United States v. Daoust, 728 F.Supp. 41, 47 (D.Me.1989), aff'd, 916 F.2d 757 (1st Because no federal statute governs the execution of state warrants by state officers without fede......
  • U.S. v. Moore
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • February 12, 1992
    ...(9th Cir.), cert. denied sub nom., Lizarraga v. United States, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979); United States v. Daoust, 728 F.Supp. 41, 47 (D.Me.1989), aff'd, 916 F.2d 757 (1st Cir.1990).We think it significant that the cases applying § 3109 to the conduct of state offi......
  • Panarello v. City of Vineland
    • United States
    • U.S. District Court — District of New Jersey
    • February 8, 2016
    ...States v. Reed , 733 F.2d 492, 501 (8th Cir.1984), which involved warrantless entry into commercial property, and United States v. Daoust , 728 F.Supp. 41, 42–46 (D.Me.1989), which involved officers walking around a home trying to find the front door to a home where no path existed around t......
  • State v. Ribe
    • United States
    • Utah Court of Appeals
    • May 26, 1994
    ...entry of business premises) (dictum), cert. denied, 454 U.S. 1082, 102 S.Ct. 637, 70 L.Ed.2d 616 (1981). United States v. Daoust, 728 F.Supp. 41, 48-49 (D.Me.1989) (emphasis in original), aff'd, 916 F.2d 757 (1st Cir.1990). Such skepticism about whether the requirements of section 3109 exac......
  • Request a trial to view additional results
1 books & journal articles
  • Recording federal custodial interviews.
    • United States
    • American Criminal Law Review Vol. 45 No. 4, September 2008
    • September 22, 2008
    ...596 F.2d 824, 829-30 (9th Cir. 1979), cert. denied sub nom., Lizarraga v. United States, 441 U.S. 965 (1979); United States v. Daoust, 728 F. Supp. 41, 47 (D. Me. 1989), aff'd, 916 F.2d 757 (1st Cir. (129.) See United States v. Gatewood, 60 F.3d 248, 249 (6th Cir. 1995) ("The statute in que......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT