United States v. Werra

United States Court of Appeals
For the First Circuit

No. 09-1593

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES WERRA,

Defendant, Appellant.

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

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Lipez, Howard and Thompson,
Circuit Judges.

Page Kelley, Assistant Federal Public Defender, Federal
Defender Office, for appellant.
Richard M. Re, Attorney, Criminal Division, U.S. Department of
Justice, with whom Lanny A. Breuer, Assistant Attorney General,
Greg D. Andres, Acting Deputy Assistant Attorney General, Carmen
Milagros Ortiz, United States Attorney, and Dina Chaitowitz,
Assistant United States Attorney, Chief, Appellate Division, were
on brief, for appellee.

March 22, 2011
 LIPEZ, Circuit Judge. This case raises challenging

questions about the legality of a stop-and-frisk conducted after

law enforcement officers forced their way into a house occupied by

a group of unrelated individuals to execute an arrest warrant.

Inside the residence, the officers encountered and pat-frisked

appellant James Werra – who was not the subject of the warrant –

and discovered a gun in his pocket. After Werra was charged with

being a felon in possession of a firearm, see 18 U.S.C. §

922(g)(1), he unsuccessfully sought to suppress the gun as the

fruit of an unlawful search. The district court concluded that the

officers lawfully entered the house and that Werra's detention and

frisk were justified as reasonable safety measures. Having failed

to obtain suppression of the weapon, Werra entered a conditional

guilty plea.

On appeal, Werra reiterates his contentions that the

officers lacked the necessary level of suspicion to justify entry

of the house without consent and that, like the residents of a

traditional single-family home, he had a reasonable expectation of

privacy in the foyer and other common areas of the house. Hence,

he claims that the officers' forced entry violated his Fourth

Amendment rights and the gun must be suppressed. Alternatively, he

argues that his suppression motion should have been granted because

the officers had no justification for conducting the frisk that

produced the weapon.

-2-
 After close consideration of the law and the facts, we

conclude that the officers had insufficient grounds to justify

entering the house without consent. We also conclude that Werra

demonstrated an expectation of privacy in the foyer of 63 Menlo

Street sufficient to challenge the officers' unlawful entry into

the dwelling. The stop-and-frisk of Werra thus violated his Fourth

Amendment rights, and he is entitled to suppression of the firearm

seized from him. Accordingly, we vacate his conviction, reverse

the denial of his motion to suppress, and remand for further

proceedings.

I.

We recite the underlying facts as found by the district

court, noting where relevant the defendant's contrary view of the

testimony presented at the suppression hearing.

On the morning of November 10, 2006, Police Detective

Michael Schaaf and Massachusetts State Trooper Robert Fries were

driving around Brockton, Massachusetts, seeking to execute

outstanding arrest warrants, including one for Jeanine Daley. They

encountered a police informant named Christine, who previously had

provided Schaaf with reliable information about the location of a

suspect. Christine told the officers that she recently had seen

Daley at 63 Menlo Street, a house in a residential neighborhood

that Schaaf had been told within the previous year was a "sober

house" for recovering drug abusers. Christine told the officers

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that Daley, whom Schaaf knew to be a drug abuser, was "staying"

there.1

The officers proceeded to 63 Menlo Street. Their knock

at the front door was answered by Jeffrey Cicerano, a familiar

figure to Schaaf because Schaaf had once arrested Cicerano on an

outstanding warrant. Cicerano was the named tenant on the lease

for 63 Menlo Street and paid most of the $3,000 rent, but other

people lived there and contributed to that payment. Appellant

Werra paid Cicerano to rent the third floor, which had a bedroom,

kitchenette, and a bathroom. Although Werra's girlfriend and her

child had at some point lived with him there, they had moved out

before November 10. After their departure, Werra at times slept on

a couch in the living room "because people would 'party' on the

third floor." United States v. Werra, No. 06-10414, 2008 WL

4280035, at *1 (D. Mass. Sept. 11, 2008) (order denying motion to

suppress).

Schaaf testified that when he saw Cicerano at 63 Menlo

Street, he became concerned that the residence had become a "drug

house." Standing outside the front door, Schaaf asked Cicerano if

he could talk with him and others in the house. Cicerano asked if

1
Appellant argues on appeal that the district court went
beyond the evidence in finding that Christine told the officers
that Daley not only was seen at 63 Menlo Street, but also was
"staying" there. Although the record lends support to appellant's
contention, resolution of the factual dispute is unnecessary. See
infra note 19.

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Schaaf had a warrant. Schaaf said he did not, and then asked if he

needed one. Cicerano answered affirmatively and started to walk

away from the door. The officers responded by kicking at the

bottom of the door, prompting Cicerano to turn back and offer to

talk with them outside.

As Cicerano opened the door, however, the officers pushed

past him into the entry foyer.2 Despite Cicerano's demands that

the officers leave, they persisted and instructed Cicerano to bring

everyone in the house down to the entry area. Cicerano went

upstairs, and the officers turned their attention to the living

room that was adjacent to the foyer. Through a partially open set

of pocket doors, Schaaf and Fries observed Werra sitting on a

couch, where he was – in Schaaf's words – "just sort of staring out

into space." Schaaf asked Werra if he was all right, but received

no response.

Schaaf then heard sounds behind him, and he turned to see

three individuals entering the foyer. Two emerged from a first-

floor bedroom and the third came from the kitchen, which was

located at the back of the house opposite the front door. Seeing

movement out of the corner of his eye, Schaaf turned again to see

Werra walking out of the living room toward him. Werra's hands

2
The officers testified that Cicerano had invited them into
the house, but the district court "largely credit[ed]" Cicerano's
contrary account of their entry. Werra, 2008 WL 4280035, at *1
n.1.

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were in his front pants pockets. Schaaf saw a clip on the right

pocket that he recognized as part of a pocket knife, and he reached

over and removed the knife from the pocket. Observing that Werra's

left hand was still in his other pocket and "moving a little bit,"

Schaaf patted Werra down and felt a hard object that he identified

as a firearm. He removed the gun and told Werra he was under

arrest. Werra attempted to flee, but was subdued after a brief

struggle. He was subsequently charged for unlawfully possessing

the weapon as a felon.3

In ruling on Werra's motion to suppress the gun, the

district court issued a thoughtful 27-page decision that focused on

two separate aspects of the officers' conduct: their entry into 63

Menlo Street and the stop-and-frisk of Werra. The court concluded

that no Fourth Amendment violation occurred with respect to either

action. It found that the officers had the requisite level of

suspicion that Daley was inside 63 Menlo Street to permit forced

entry into the house to execute the warrant for her arrest. The

court also held that, given the lawful entry, the officers were

allowed to briefly detain Werra while they looked for Daley and

arrested her. The court further concluded that frisking Werra was

justified given the circumstances, which included his possession of

3
Daley was in fact found at 63 Menlo Street and arrested.

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the knife and the officers' suspicion that the residence was being

used as a "drug house."4

Having rejected Werra's challenge to the legality of the

frisk that produced the gun, the court denied his motion to

suppress the weapon. Werra's conditional guilty plea and this

appeal followed.

II.

Werra claims that his Fourth Amendment rights were

violated in two distinct ways, and he asserts that either violation

is sufficient to require suppression of the firearm seized from

him. First, he contends that the officers unjustifiably forced

their way into 63 Menlo Street – his residence – and that any

evidence resulting from their unlawful presence in the house must

be suppressed. Werra alternatively claims that, whether or not the

officers were lawfully present in the foyer, they lacked

justification for conducting the stop-and-frisk that revealed the

gun. As described above, the district court rejected both of these

contentions.

In evaluating a district court's denial of a motion to

suppress, we review its findings of fact for clear error and apply

de novo review "to the application of law to those facts and to

4
Recognizing that the facts underlying the motion to suppress
"offer the potential for multiple branches to the decision tree,"
the district court also assessed Werra's reasonable expectation of
privacy in the foyer at 63 Menlo Street. Werra, 2008 WL 4280035,
at *1, **3-5.

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conclusions of law." United States v. Rheault, 561 F.3d 55, 58

(1st Cir. 2009). Werra bears the burden of showing a violation of

his Fourth Amendment rights. Id. 58-59.

The government argues that the court's rulings are

supportable on multiple, independent grounds. First, it asserts

that, under Payton v. New York, 445 U.S. 573 (1980), the officers

lawfully entered 63 Menlo Street without consent to execute the

arrest warrant for Daley,5 and, once inside, they had the right

under Michigan v. Summers, 452 U.S. 692 (1981), to detain Werra to

ensure that the warrant could be executed "safely and effectively."

See Werra, 2008 WL 4280035, at *7.6 The government argues that the

frisk became necessary and proper because of the officers'

objectively reasonable suspicion that Werra was armed and

dangerous. See Sibron v. New York, 392 U.S. 40, 64 (1968).

Second, the government argues that Werra may not

challenge the officers' entry into, or presence in, the house

5
In Payton, the Supreme Court held that a valid arrest
warrant "implicitly carries with it the limited authority to enter
a dwelling in which the suspect lives when there is reason to
believe the suspect is within." 445 U.S. at 603.
6
In Summers, the Court held that a search warrant gives
officers "the limited authority to detain the occupants of the
premises while a proper search is conducted." 452 U.S. at 705.
This case involves an arrest warrant rather than a search warrant,
but the district court found the difference of no consequence. It
noted that other courts have extended Summers to the arrest context
on the ground that "the same law enforcement interests are
applicable in both scenarios." Werra, 2008 WL 4280035, at *7
(citing Cherrington v. Skeeter, 344 F.3d 631, 638 (6th Cir. 2003);
United States v. Enslin, 327 F.3d 788, 797 (9th Cir. 2003)).

-8-
because he lacked a reasonable expectation of privacy in the foyer

– the location in which he was detained and frisked. See New York

v. Class, 475 U.S. 106, 112 (1986) ("[T]he State's intrusion into

a particular area . . . cannot result in a Fourth Amendment

violation unless the area is one in which there is a

'constitutionally protected reasonable expectation of privacy.'"

(quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan,

J., concurring))); Rheault, 561 F.3d at 59. Under this theory,

even if there was an unlawful entry that foreclosed reliance on the

Summers rationale, the government contends that the officers'

interactions with Werra were permissible under Terry v. Ohio, 392

U.S. 1 (1968).7

Our analysis begins with Werra's expectation of privacy

in the premises at 63 Menlo Street. After explaining why we

conclude that Werra has shown the necessary privacy interest, we

address the lawfulness of the officers' entry into the house. The

results of those discussions make it unnecessary for us to evaluate

the propriety of the stop-and-frisk.

7
In United States v. Romain, 393 F.3d 63 (1st Cir. 2004), we
"decline[d] to adopt a per se rule banning the Terry [stop-and-
frisk] doctrine from residential settings" and "similarly
decline[d] any rule-like suggestion that Terry's requirement of
particularized suspicion is in any way diminished within the home
simply because an officer legitimately enters upon its premises."
Id. at 76 n.3.

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A. Werra's Reasonable Expectation of Privacy in 63 Menlo Street

Whether a defendant has a reasonable expectation of

privacy in a particular place is a two-pronged inquiry. We

consider "first, whether the movant has exhibited an actual,

subjective, expectation of privacy; and second, whether such

subjective expectation is one that society is prepared to recognize

as objectively reasonable." Rheault, 561 F.3d at 59. The inquiry

is necessarily fact-dependent, "taking into consideration the

nature of the searched location, and using our prior decisions for

guidance." Id.; see also United States v. Beaudoin, 362 F.3d 60,

70 (1st Cir. 2004) ("Fourth Amendment analysis is renownedly fact

specific . . . ."), vacated on other grounds by Champagne v. United

States, 543 U.S. 1102 (2005) (mem.). As the district court

recognized, Werra's privacy interest in the foyer of 63 Menlo

Street is linked to "the proper characterization of the building

itself." Werra, 2008 WL 4280035, at *3. As the resident of a

dwelling that is "akin to a traditional home," id. at *4, he would

possess a reasonable expectation of privacy throughout the interior

of the premises. See Payton, 445 U.S. at 590 ("[T]he Fourth

Amendment has drawn a firm line at the entrance to the house.");

United States v. Weidul, 325 F.3d 50, 52 n.1 (1st Cir. 2003)

(noting that a defendant who was "staying or living" with a friend

had an expectation of privacy in the friend's home). If the

residence were comparable to a multi-unit apartment building,

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however, with "[d]istinct, complete living spaces," Werra, 2008 WL

4280035, at *4, Werra's privacy interest would not extend to common

areas such as the foyer. See, e.g., Rheault, 561 F.3d at 59

(noting well settled precedent that "'a tenant lacks a reasonable

expectation of privacy in the common areas of an apartment

building'" (quoting United States v. Hawkins, 139 F.3d 29, 32 (1st

Cir. 1998))); United States v. Brown, 169 F.3d 89, 92 (1st Cir.

1999) (rejecting Fourth Amendment claim based on officer's entry

into the lobby of apartment building).

The district court aptly observed that 63 Menlo Street

"does not fit squarely into the paradigm for either a traditional

family home or a multi-unit apartment building." Werra, 2008 WL

4280035, at *4. Although it is a single-family structure, the

residents were not a traditional single family occupying the house

together. As other courts have held with respect to rooming houses

and fraternities, however, an unconventional household does not

necessarily diminish the protection afforded the residents of the

house. See, e.g., Reardon v. Wroan, 811 F.2d 1025, 1027 n.2 (7th

Cir. 1987) (noting that "fraternity members could best be

characterized as 'roommates in the same house,' not simply co-

tenants sharing certain common areas"); State v. Titus, 707 So. 2d

706, 708 (Fla. 1998) ("The mere fact that certain rooms

traditionally associated with a home are shared by rooming house

residents does not render the structure any less a home to those

-11-
residents."); People v. Garriga, 596 N.Y.S.2d 25, 28 (N.Y. App.

Div. 1993) ("[E]xisting precedent, although sparse, supports the

conclusion that the internal hallway area of this rooming house was

part of the defendant's home for Fourth Amendment purposes."). But

see, e.g., United States v. Anderson, 533 F.2d 1210, 1214 (D.C.

Cir. 1976) (holding that "appellant's constitutionally protected

privacy interest began at the door to [his] room . . . rather than

at the door to the entire rooming house").8

Thus, we agree with the district court that, unlike the

typical expectation-of-privacy inquiry, which focuses solely on the

particular location in which the evidence the defendant seeks to

suppress was found, see, e.g., United States v. Bucci, 582 F.3d

108, 116 (1st Cir. 2009) (front of home, as viewed by video

camera); Rheault, 561 F.3d at 59 (third-floor landing of the front

stairway); United States v. Meada, 408 F.3d 14, 22 (1st Cir. 2005)

(gun case), we must conduct a broader examination of Werra's and

the other tenants' living arrangements throughout 63 Menlo Street.

If they lived separately – like apartment dwellers – they could not

claim the common areas of the house, including the foyer, as their

private space vis-a-vis outsiders. However, if they did not live

8
We acknowledge, as the dissent emphasizes, that there are
other cases relevant to the expectation-of-privacy issue. None is
precisely on point, and we find none more apt than the ones we have
cited. As we have explained, the expectation-of-privacy inquiry
requires a close, holistic review of the particular record at
issue. Our conclusion in this case is a product of such a review.

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in individualized "residences" within the house – and were thus

more like the occupants of a single-family home – their right to

privacy vis-a-vis outsiders would begin at 63 Menlo Street's front

door. Under the latter scenario, the officers would have violated

Werra's reasonable expectation of privacy by forcibly entering the

house. We thus also agree with the district court that the

relevant considerations for our inquiry include whether the

building contains "recognizably separate living units," the

residents' right to exclude others from parts of the building, the

number of residents, and the "formal legal relationship" among

them. Werra, 2008 WL 4280035, at *4-5. Other facts that shed

light on how the tenants viewed the dwelling, including the

tenants' customary use of various spaces within the premises, also

are pertinent in evaluating their subjective expectation of

privacy.

We think it of particular note that, unlike an apartment

building in which tenants contract individually with the landlord,

63 Menlo Street was rented as a whole by Cicerano. He described it

as "my house" at the suppression hearing and, indeed, Cicerano

reported that he paid most of the $3,000 rent – though "everybody

pitched in." The district court listed about a half-dozen

individuals who were living in the residence at the time of the

police entry. They were not related – Cicerano, in fact, did not

know the last name of a tenant named Paul – but they were also not

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thrown together randomly. Cicerano explained that the residents

were "basically just friends trying to make it through . . . [n]ot

living on the street." The operation of 63 Menlo Street was thus

in some respects a collective undertaking, with both the financial

arrangements and the informal relationship among the residents

suggestive of a single household.

The residents' use of the house points in the same

direction. Werra paid rent specifically for the third floor, which

contained a bathroom and a kitchenette, and it apparently could

have been used as a self-contained unit. At the time of the police

entry, however, Werra was not the only person to regularly make use

of the third floor, and he did not live solely within it. Werra

testified that he had spent "[m]any nights" sleeping on a couch in

the living room on the first floor because "when I was up on the

third floor, everybody wanted to come up on the third floor."

Other testimony from Werra and Cicerano, although not

fully consistent, also indicated that neither Werra nor the other

tenants viewed the third floor as an independent living unit at the

time the officers entered the house. Werra acknowledged that the

third floor was his "own personal space," but said that he had been

paying rent for that space only until his girlfriend moved out at

the end of October.9 He testified that, more recently, he had been

9
The specific exchange between the prosecutor and Werra was
as follows:

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sleeping in the living room. He explained that he did not have a

bed on the third floor – only a pullout couch – and said he and his

brother moved furniture into the living room so he could stay

there.

Cicerano confirmed that Werra relocated to the living

room because the third floor was at times taken over by others,

although he described Werra's relocation as intermittent rather

than ongoing. He testified that Werra "once in a while" slept in

the living room "because there was a lot of partying basically, and

a lot of people went to the third floor, so when he wanted to

sleep, sometimes he'd go in there." Cicerano reported that the

third floor had a door and that Werra had the ability to keep

people out, but he also indicated that it would have been difficult

for Werra to exclude others on the night before the November 10

incident because the first floor was "shut down" in the aftermath

of Cicerano's mother's funeral.10 Taken as a whole, the evidence

regarding Werra's use of the living room showed that he slept there

Q. That was your own personal space up there, correct?
A. Uh-huh.
Q. That's what you were paying rent for?
A. When Melissa was there, yes.
10
When asked if Werra could shut the door to the third floor
Cicerano responded: "I imagine, yeah. But with the downstairs
being shut down, if you're asking me could people have partied up
there that night? I can't tell you." Cicerano was then asked if
Werra "had the ability, had he wanted to, to keep people out of the
third floor." He responded: "Yes, but with the first floor being
shut down, it would have been kind of – yeah, yeah, he did."

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at least intermittently, with Cicerano's consent but at Werra's own

discretion.

Although the record contains no direct evidence about

Werra's use of the downstairs kitchen and the other bathrooms in

the house, Cicerano stated that people would sometimes congregate

in the kitchen that adjoined Cicerano's bedroom on the first floor.

Given his proximity to the downstairs kitchen when he was sleeping

in the living room, it is a fair inference that Werra was at times

part of such a group. In addition, when Werra was asked at the

suppression hearing to confirm that there was a bathroom on the

third floor, he noted that bathrooms also were located on the first

and second floors – indicating that he had used them instead of

bothering to climb up the stairs.11

Not all rooms, however, were open to all tenants.

Cicerano had a lock on his bedroom door, and he rarely allowed

others to use the adjacent living room because he did not want to

be disturbed when he was sleeping. Like Werra, other tenants were

11
The exchange on that issue, in relevant part, was as
follows:

Q. But at some point you decided it was too much trouble
to go upstairs, and you just started living on the first
floor there instead?
A. Yes.
Q. The third floor had a bathroom, correct?
A. Yes, it did.
Q. And it was only three flights up, correct?
A. Yeah, but there was also a bathroom on the first and
second floor.

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assigned specific rooms; Cicerano testified, for example, that Paul

"rented a room on the second floor."

Yet, on balance, Cicerano's and Werra's testimony

indicates that the tenants shared the house in much the same way as

would a traditional family. Offspring in a single-family home may

at times lock bedroom doors or post "do not enter" signs aimed at

excluding their siblings and parents from their assigned rooms.

And, just as occurs in the traditional family context, the supposed

exclusivity of personal space at 63 Menlo Street – at least with

respect to Werra's third-floor quarters – was not always respected.

Werra's co-tenants were undeterred by the door to the third floor

when that space was "needed" for their comfort and enjoyment.

Werra behaved similarly, claiming alternative space in the house

when the third floor was targeted by others. Though Cicerano

limited access to the living room to suit his needs, the record

shows that the tenants shared use of the first-floor kitchen and

the second- and third-floor bathrooms. These circumstances are a

far cry from a typical apartment building setting, where tenants

live within discrete units and use common spaces, such as hallways

and basements, primarily for storage or access to the outside.

In analyzing whether Werra had demonstrated that 63 Menlo

Street was sufficiently like a traditional home to give him an

expectation of privacy in relation to outsiders throughout the

premises, the district court began by noting that the evidence

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"lacked many details concerning the rights of the residents within

the building and the relationships among those who lived there."

Werra, 2008 WL 4280035, at *5.12 The court observed that the third

floor "appear[ed] to have been an independent living unit from

which Werra could exclude others," and it stated that Werra "had no

reasonable expectations of privacy in the foyer because others over

whom he had no control could pass through it without his

permission." Id. The court concluded its analysis by noting that

Werra's expectation of privacy in the living room "was limited to

the permission for use granted by Cicerano." Id.

The government urges us to adopt the district court's

conclusion that "the absence of . . . key facts" means that Werra

failed to carry his burden of showing that 63 Menlo Street was

equivalent to a traditional home. Id. We agree that the record

was less than ideal. That the evidence could have been stronger,

however, does not make it inadequate. As we have described, the

facts found by the district court indicate that day-to-day living

for the tenants at 63 Menlo Street, including Werra, occurred

throughout the house. Although the record does not show that the

unrelated individuals who resided at 63 Menlo Street behaved like

a traditional family, it does show that they were not merely co-

12
As an example of the imprecision in the record, the court
stated that "it is unclear whether the residents shared bathrooms
and kitchens, to precisely what extent they were assigned specific
parts of the building, and whether they locked doors to keep other
people out." Werra, 2008 WL 4280035, at *5.

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tenants who passed through the common spaces of the house on the

way to and from their independent pursuits. Rather, like the

fraternity members described in Reardon, the residents of 63 Menlo

Street "could best be characterized as 'roommates in the same

house,' not simply co-tenants sharing certain common areas." 811

F.2d at 1027 n.2. Indeed, the residents at 63 Menlo Street were

all living with Cicerano, in "his" house, as part of a

nontraditional single-"family" household. As Cicerano put it,

Werra "stayed at my house, he lived at my house."

The district court's analysis does not address the facts

showing that 63 Menlo Street was operated as a single household,

including Cicerano's notable testimony that he paid most of the

rent. The court's finding that Werra could have lived

independently and excluded others from the third floor is correct,

but that theoretical arrangement did not reflect the evidence on

how Werra and the other residents actually lived. Although the

dissent focuses on the discrepancy between Werra's and Cicerano's

testimony about how frequently Werra slept in the living room, the

analysis is the same whether Werra did so intermittently or "[m]any

nights"; the fact remains that it was an ordinary occurrence for

others to use the third floor and for Werra to relocate to the

living room. Moreover, Werra testified that his brother helped him

move furniture into the living room, conduct that shows a belief

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that he had a personal claim to the space – albeit a claim that was

subject to the quiet use that was demanded by Cicerano.13

The government cites no case in which a resident of a

single-family structure was found to lack a reasonable expectation

of privacy, relative to outsiders, in the common areas of his or

her house. Instead, it points to inapposite cases involving

duplexes or larger buildings in which tenants lived in separate,

fully self-contained units. Similarly, the district court

mistakenly adopted the frame of reference for multi-unit buildings

in observing that Werra lacked a privacy interest in the foyer

because others living in the house could pass through the entryway

without his permission. The inability to exclude cohabitants from

shared spaces within a traditional home does not on its own

eliminate a resident's privacy interest in keeping outsiders from

13
Even if, as our dissenting colleague asserts, the district
court impliedly credited Cicerano's notion of how often Werra slept
in the living room over Werra's statement that he spent many nights
there, there is no basis for concluding that the court generally
disbelieved Werra and hence we should disregard all of his
testimony. The court's analysis of Werra's expectation of privacy
in the foyer was brief and, as noted, it emphasized the details
missing from the record.
We thus disagree with the dissent's suggestion that we have
not been appropriately deferential to the district court's fact-
finding. Our dispute is with the court's legal conclusion that the
facts of record did not show that Werra possessed a reasonable
expectation of privacy in the foyer. That ultimate issue,
involving application of law to facts, is subject to de novo
review. See Rheault, 561 F.3d at 58. Moreover, our obligation to
draw all reasonable inferences in the government's favor, see
United States v. Dubose, 579 F.3d 117, 120 (1st Cir. 2009), does
not require us to ignore facts favorable to the defendant.

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barging through the front door. Individuals routinely bring

friends into their homes without the consent of every family member

who resides there, and such unilateral decisions do not convert the

hallway or entrance of a private home into a public space. There

is no evidence that people who did not live at 63 Menlo Street

routinely entered without the consent of a resident, which might

have undermined the presumption of privacy that normally attends

the interior of a residence.14

In sum, based on the facts of record, we conclude that

Werra has met his burden to show that he possessed a subjective

expectation of privacy in the foyer of 63 Menlo Street – or, more

specifically, that he believed the entire house, and not just the

third floor, served as his home and, hence, that he could prevent

the entry of anyone whom he and his housemates wished to keep out.

We further conclude that, on this record, Werra's expectation of

privacy was reasonable. A resident of a single-family structure

who shares living arrangements as did the tenants of 63 Menlo

14
Of course, this would be a very different case if Cicerano
had given the officers permission to enter. Even with a reasonable
expectation of privacy in the entire premises, Werra could not
challenge the officers' presence in the foyer if Cicerano had let
them in. See United States v. Matlock, 415 U.S. 164, 171 n.7
(1974) ("[C]o-inhabitants . . . have assumed the risk that one of
their number might permit the common area to be searched."); cf.
Georgia v. Randolph, 547 U.S. 103, 106 (2006) (holding that "a
physically present co-occupant's stated refusal to permit entry
prevails"). The government does not challenge on appeal the
district court's finding that the officers entered the house
without consent.

-21-
Street could reasonably expect that his right to privacy begins at

the front door. See Titus, 707 So. 2d at 708 (holding that, "just

like private homeowners, rooming house residents have an actual

expectation of privacy in the common areas of the rooming house"

and that "given the sanctity of the home, society is prepared to

recognize that expectation as reasonable").15

Because Werra had a reasonable expectation of privacy in

the foyer, he is entitled to challenge the officers' forcible,

warrantless entry into the house. The government claims that the

officers lawfully entered to execute the arrest warrant for Daley.

We now turn to that contention.

B. The Officers' Entry into the House

In Payton v. New York, the Supreme Court held that police

officers attempting to execute an arrest warrant have "limited

authority to enter a dwelling in which the suspect lives when there

is reason to believe the suspect is within." 445 U.S. at 603.

Payton's two-prong inquiry thus requires us to ask whether Schaaf

15
The subjective beliefs of Werra and the other tenants are
a particularly significant component of the analysis here because
they shed light on the nature of the living arrangements within the
single-family house. The tenants' belief that they may occupy
spaces throughout the house, and their behavior reflecting that
belief, evidence a subjective expectation of privacy vis-a-vis
outsiders akin to that possessed by the members of a traditional
single-family household. That traditional expectation of privacy
begins at the front door of the home, and there is thus no need to
examine Werra's use of the foyer in particular. The objective
reasonableness of Werra's subjective expectation of privacy
depends, as we have described, on a holistic assessment of the
facts of record.

-22-
and Fries had a sufficient basis to believe that Daley (1) lived at

63 Menlo Street and (2) was at home at the time of their entry.

The district court described the issue as "close" and the evidence

supporting the government's position as "thin." Werra, 2008 WL

4280035, at *9. The government itself stated at oral argument

before the district court that the arrest warrant did not give the

officers the authority to enter the house.16 Nonetheless, the court

concluded that "a reasonable officer in the same position could

have formed an objectively 'reasonable belief' that Jeanine Daley

lived at the premises and was present at the time of entry." Id.

at *10.

As a threshold matter, Werra argues that the court's use

of the "reasonable belief" standard was incorrect, and that the

officers instead needed to demonstrate that they had probable cause

to believe that Daley lived in the Menlo Street house and was home

on the morning of November 10. Although most circuits to have

considered the issue have adopted the "reasonable belief" standard,

and treat it as less stringent than probable cause, see, e.g., El

Bey v. Roop, 530 F.3d 407, 416-17 (6th Cir. 2008); United States v.

16
In response to a question from the court, the prosecutor
responded:

Your Honor, I don't think had it infringed on any
expectation of privacy of the defendant, I don't think
the officers had enough information about the presence of
Jeanine Daley in there to rely on the arrest warrant. I
think it was an insufficient basis for th[eir] being in
the building and seeking to find her there.

-23-
Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005); Valdez v. McPheters,

172 F.3d 1220, 1224-25, 1227 n.5 (10th Cir. 1999); United States v.

Lovelock, 170 F.3d 339, 343 (2d Cir. 1999), the Ninth Circuit

requires probable cause, see United States v. Gorman, 314 F.3d

1105, 1115 (9th Cir. 2002). We have not explicitly made a choice,

but have implicitly accepted the majority view. See, e.g., United

States v. Graham, 553 F.3d 6, 12-14 (1st Cir. 2009). In this case,

the government cannot meet even the less stringent reasonable

belief standard.

The relevant information possessed by the officers in

this case, as found by the district court, was the following: (1)

an informant (Christine) told the officers that she had recently

seen Daley at 63 Menlo Street and that Daley was "staying" there,

Werra, 2008 WL 4280035, at *9; (2) Christine had previously

provided Schaaf with accurate information about the location of a

suspect; (3) Schaaf was aware that Daley had been a drug abuser;

(4) on Schaaf's previous visit to 63 Menlo Street, within the

previous year, "he had observed it to be a sober house with tenants

living on the premises," id.; and (5) the officers arrived at the

house "relatively early in the morning, at approximately 10:00

a.m," id. at *10.

We doubt that this information was sufficient to support

even the first prong of the Payton inquiry – that Schaaf and Fries

could reasonably believe that Daley was living at 63 Menlo Street

-24-
when they forced their way into the house. Although eyewitness

evidence from a reliable informant that an individual was staying

at a certain location might in some circumstances suffice to

support a reasonable suspicion that the individual lives there, the

context here does not permit such reliance on Christine's

statement. In his affidavit, Schaaf reported that Christine had

told the officers that at some point "recently" – a term that could

refer to days or weeks earlier17 – she had seen Daley at the Menlo

Street house. Cf. United States v. Pruitt, 458 F.3d 477, 478-79

(6th Cir. 2006) (finding reasonable belief that the suspect was

present where, inter alia, an anonymous caller had reported seeing

him "within the past few hours").

A different home address appeared on the arrest warrant

for Daley and, even accepting that she had stayed at the Menlo

Street house "recently," the officers neither conducted

surveillance nor took any other steps to verify that her stay had

not been temporary. If the house were a sober house, as Schaaf had

been told, Daley might have passed through only briefly in an

attempt to deal with her drug abuse problem. An extended stay was

no more inevitable if the house were instead a haven for drug

users, which Schaaf said he suspected when Cicerano – another known

drug user – came to the door.

17
Given that it was early in the morning, we see no basis for
an inference that "recently" meant earlier that day.

-25-
 The skimpy evidence of Daley's residency at 63 Menlo

Street contrasts sharply with the information available to officers

in other cases raising a Payton issue. For example, in Graham, 553

F.3d at 13, a police report about a domestic incident identified

the defendant as the offender and gave his address as the building

where he was subsequently arrested. In addition, the officers had

tried to execute the warrant at the defendant's previous address,

but did not find him. Id. at 10. Similarly, in United States v.

Clayton, 210 F.3d 841 (8th Cir. 2000), a police record indicated

the defendant lived at the address where the arrest was made. Id.

at 842; see also, e.g., United States v. Jones, 523 F.3d 31, 37

(1st Cir. 2008) (finding entry into hotel room lawful where hotel

manager told officers that suspect had rented a particular room for

three weeks, and a man detained in the parking lot told officers

that suspect was then inside the suite); United States v.

Pelletier, 469 F.3d 194, 197, 200-01 (1st Cir. 2006) (finding entry

into a motel room lawful where officers who went to defendant's

home were told he was not there; defendant's girlfriend's sister

said he was at a certain room at a motel; the room was registered

in the sister's name; and a motel maintenance worker identified the

defendant as the sole occupant of the room); Valez, 172 F.3d at

1226-27 (finding entry justified where, among other factors,

suspect had told an officer that he lived at the location and other

law enforcement officers informed the entering authorities that he

-26-
lived there); United States v. Risse, 83 F.3d 212, 214-16 (8th Cir.

1996) (finding entry lawful where, among other factors, the

defendant had told the police that she was "staying" at the

location and the officers could contact her there).

Even if the informant's tip, together with Schaaf's

general impression of 63 Menlo Street, were enough to support a

reasonable belief that Daley was living in the house, there was not

a shred of evidence to satisfy the second Payton prong – that the

officers reasonably believed she was in the house at the time they

entered. As noted above, the officers made no attempt to confirm

the currentness of Christine's information by, for example,

conducting surveillance or placing a telephone call to the house.

Cf. El Bey, 530 F.3d at 417 (noting that "a review of the relevant

caselaw indicates that law enforcement officers often rely on

independent investigation and observations of the premises to

determine whether a suspect is actually inside before entering").

Although "actual viewing of the suspect on the premises is not

required," Valdez, 172 F.3d at 1226, the officers must point to at

least some evidence suggesting that the individual named in the

arrest warrant is present. See id. (citing numerous cases and

various types of circumstantial evidence, including presence of a

car associated with the suspect and knowledge of employment

circumstances that would make it likely the suspect would be at

home and asleep); see also Pruitt, 458 F.3d at 483 (same, noting

-27-
that reasonable belief may be generated by "consideration of common

sense factors and the totality of the circumstances").

The government asserts that officers should not be

expected to "conduct resource-draining stake-outs in order to

arrest suspects at their known residences," and it correctly points

out that courts regularly uphold entries where the time of day

suggested the suspect's presence at home. See, e.g., Thomas, 429

F.3d at 286 (noting that "the early morning hour [between 6:00 and

6:30 a.m.] was reason enough" for the officers to believe the

defendant would be at home); United States v. Bervaldi, 226 F.3d

1256, 1267 (11th Cir. 2000) (concluding that it was "reasonable to

believe, in the absence of contrary evidence, that [suspect] would

be at his residence at 6:00 in the morning"); United States v.

Terry, 702 F.2d 299, 319 (2d Cir. 1983) (finding reasonable belief

that suspect would be at home at 8:45 a.m. on Sunday morning);

United States v. Bridgewater, 333 F. App'x 470, 472 (11th Cir.

2009) (holding that "[e]arly morning police entry [7:00 a.m.]

weighs in favor of finding that the officers reasonably believed

[suspect] was inside the house"). The government argues that, as

in those cases, Schaaf and Fries reasonably could rely on the time

of day and assume that Daley was home at 10:00 a.m. on the Friday

morning they entered 63 Menlo Street.

The time-of-day precedent, however, does not support the

conclusion the government wishes us to draw. In the cases cited by

-28-
the government and in others where timing was a factor, there was

no serious question that the location of the arrest was where the

defendant lived,18 and information beyond timing frequently

contributed to the officers' reasonable belief that the suspect was

present. See, e.g., Valdez, 172 F.3d at 1227 (holding that midday

entry was constitutional where suspect "was unemployed, liked to

stay out late drinking, [and] sometimes abused drugs such as heroin

and cocaine"); United States v. Munoz, 150 F.3d 401, 407, 411 (5th

Cir. 1998) (listing officers' 5:00 a.m. arrival as one factor

supporting reasonable belief suspect was at home); United States v.

Lauter, 57 F.3d 212, 213, 215 (2d Cir. 1995) (finding reasonable

belief that suspect was in the apartment at 8:30 a.m. Monday

because he "was unemployed and typically slept late"); United

States v. Hayes, 209 F. App'x 548, 551 (7th Cir. 2006) (rejecting

challenge to reasonable belief that suspect would be home as

frivolous where police "entered at 10:00 a.m. on a weekday" and the

suspect "was an unemployed drug addict with no car").

18
In Thomas, a federal officer testified, without details,
that the defendant's address was learned "after an 'investigation
was done.'" 429 F.3d at 286. In holding that the testimony was
sufficient to establish a reasonable belief that the defendant
lived at that address, the court noted that the defendant was a
parolee who was required to keep his current address on file with
his parole supervision officer. Id. The likely source of the
information was therefore apparent and reliable. See id. (noting
that the defendant did not attempt to elicit details of the
investigation).

-29-
 The fact that an individual is known to live at a

particular location is one sound reason to expect him or her to be

there. See 2 Wayne R. LaFave, Search and Seizure § 6.1(a) (4th ed.

2004) (noting that "the police need not possess 'special knowledge'

that the defendant is at home . . . for in the absence of facts

tending to show that the defendant is not at home it is reasonable

to infer that he would be there"). Here, however, the officers'

knowledge of Daley's residence consisted only of Christine's

imprecise, uncorroborated statement that Daley had "recently" been

staying at 63 Menlo Street.

Moreover, there is no evidence to suggest that Daley

ordinarily would be home at 10:00 a.m. on a weekday, wherever she

lived. So far as the record shows, the officers had no information

about whether she was employed or about her nighttime and daytime

routines. Entering a home at 10:00 a.m. is significantly different

from entering at 5:00 or 6:00 a.m., when even working individuals

can reasonably be presumed to be at home. The fact that Daley was

a drug abuser possibly living in a "party" house or a recovering

drug user living in a sober house does not reveal her employment

status or inclination to sleep late. Nor does the crime for which

the warrant was issued – a non-violent probation violation stemming

from a conviction for larceny of a motor vehicle – suggest that she

was likely to be unemployed and at home. In sum, none of the

factors typically considered to be evidence of a suspect's presence

-30-
were part of the record here.19 In these circumstances, the

officers could not have formed a reasonable belief that Daley was

at 63 Menlo Street when they forcibly entered the house.20

19
The dissent mistakenly construes our analysis in suggesting
that we are improperly demanding more than a "reasonable belief"
that Daley resided at 63 Menlo Street. We have merely pointed out
that, in cases where time of day has provided a basis for believing
a suspect would be at home, the location of the suspect's residence
was well established – making it more likely that he or she would
be there. By contrast, where the officers knew only that Daley had
"stayed" at a residence not known to be her home at some undefined
"recent" time, arriving at mid-morning on a work day cannot on its
own support a reasonable belief that she would be there. Moreover,
recognizing that a relationship may exist between the officers'
knowledge on the two Payton prongs does not conflate the two
inquiries.
The circumstances in United States v. Gay, 240 F.3d 1222 (10th
Cir. 2001), a case highlighted by the dissent, were markedly
different from those here. A confidential informant whom officers
encountered at the home of the suspect's uncle stated that the
suspect did not live there. Id. at 1225. Unlike the imprecise
information about the suspect's whereabouts offered by Christine,
the informant in Gay "knew, from personal experience and numerous
visits," that the suspect lived at a residence two miles away. Id.
The informant accompanied officers to that location and told them
the suspect was "presently in his home." Id. Similarly, contrary
to the dissent's assertion, the facts of Hayes do not closely
resemble the circumstances here. Among other differences, the
officers in Hayes knew where the suspect lived, and his probation
officer had told them that the suspect would likely be at the
apartment. See 209 F. App'x at 551.
20
We note that the record raises some questions about whether
Christine in fact reported that Daley was "staying at" 63 Menlo
Street. Although Schaaf testified on direct examination at the
suppression hearing that the officers had received information that
Daley "was staying at 63 Menlo Street," his affidavit reported that
Christine "indicated she had seen [Daley] recently at 63 Menlo
Street" (emphasis added). Schaaf backtracked a bit in his
testimony on cross-examination, agreeing that the information in
the affidavit – i.e., that Christine indicated that she had seen
Daley at the house – was "about the sum" of what Christine had
said. Fries, meanwhile, testified on direct examination that
Christine told the officers that she had "seen [Daley] earlier up

-31-
 The government thus got it right the first time, when it

told the court that the information available to the officers was

insufficient to support a reasonable belief that Daley would be

inside 63 Menlo Street at the time they entered the house. Hence,

the officers' entry into the foyer was unlawful and, because Werra

possessed a reasonable expectation of privacy there, the illegal

entry violated his Fourth Amendment rights. The firearm seized in

the course of the stop-and-frisk was a fruit of that violation and,

accordingly, it should have been suppressed. See Wong Sun v.

United States, 371 U.S. 471, 484-85 (1963); United States v.

Sanchez, 612 F.3d 1, 4 (1st Cir. 2010).

We hasten to add that we are not suggesting that officers

who unlawfully enter a home must subject themselves to the risk of

being harmed by a resident whom they believe is armed and

dangerous. They are certainly entitled to take reasonable actions

to defend themselves.21 But the reasonableness of the officers'

interaction with such an individual for that protective purpose

does not determine the Fourth Amendment suppression issue generated

by the unlawful entry. In this case, because Werra had a

at Menlo Street," and on cross-examination agreed that Christine
told the officers that she had "recently seen" Daley there. Given
the absence of other evidence, it makes no difference to our
analysis whether Christine reported that Daley was "staying" there
or had only been seen there.
21
Although we agree in this respect with our dissenting
colleague, we offer no view on his analysis of the detention issue
under Terry.

-32-
reasonable expectation of privacy in the foyer and the officers

entered the house unlawfully, the officers' encounter with Werra

and the discovery of the gun were both results of the officers'

unconstitutional conduct. Werra was thus entitled to suppression

of the gun.

We therefore reverse the district court's denial of

Werra's motion to suppress, vacate Werra's conviction, and remand

the case for further proceedings consistent with this opinion.

So ordered.

– Dissenting Opinion Follows –

-33-
 HOWARD, Circuit Judge (dissenting). I respectfully

disagree that Werra had a reasonable expectation of privacy

throughout 63 Menlo Street such that he could challenge the

officers' entry. In any event, I conclude that the officers' entry

into the building was lawful. And I am persuaded that Det. Schaaf

lawfully detained and patted Werra during the execution of a valid

arrest warrant. These views compel me to dissent from the

majority's conclusion that the firearm found in Werra's front pants

pocket should be suppressed.

I.

Werra must establish that "his own Fourth Amendment

rights were violated by the challenged search or seizure." Rakas

v. Illinois, 439 U.S. 128, 131 n.1 (1978). His threshold burden is

to prove that "he had a legitimate expectation of privacy in 'the

place searched or the thing seized.'" United States v. Rheault,

561 F.3d 55, 59 (1st Cir. 2009) (quoting United States v. Thornley,

707 F.2d 622, 624 (1st Cir. 1983)). To do so Werra must show not

merely that he had an "actual, subjective, expectation of privacy,"

but that his "subjective expectation is one that society is

prepared to recognize as objectively reasonable." Id. (citing

Smith v. Maryland, 442 U.S. 735, 740 (1979)). Like the district

court, I conclude that Werra has failed to satisfy this burden.

Following a two-day evidentiary hearing, the district

court found that Werra did not have an objectively reasonable

-34-
expectation of privacy. The district court's findings, set forth

in a thoughtful rescript, included the following. Werra paid rent

to occupy an "independent living unit" on the third floor, replete

with "a bedroom, a kitchenette and a bathroom." United States v.

Werra, No. 06-10414, 2008 WL 4280035, at *1, *5 (D. Mass. Sept. 11,

2008). His third-floor unit was his "personal space" and he "had

the ability to keep people out of that part of the building,"

although tenants would sometimes "party" on the third-floor,

prompting Werra to sleep on a couch downstairs "once in a while"

with Cicerano's permission. Id. at *1. Unlike his third-floor

unit, Werra "had no expectation of privacy in the foyer because

others over whom he had no control could pass through it without

his permission." Id. at *5. And, critically, Werra failed to

demonstrate "that 63 Menlo Street was akin to a traditional home"

with evidence "concerning the rights of the residents within the

building and the relationships among those who lived there." Id.

None of our cases is directly on point, but Rheault

provides an adequate starting point for the analysis. There, we

concluded that a tenant renting the second of three units in a

three-story building (a so-called triple-decker) did not have an

objectively reasonable privacy expectation in the third-floor

landing. 561 F.3d at 57, 61. We reasoned that the proximity of

the third-floor landing to the defendant's second-floor unit cut

against the reasonableness of his privacy interest, as did his

-35-
inability to exclude others from that area. Id. at 61 ("a

potentially revolving cast of third-floor tenants and their guests

had relatively unfettered access to the very area in which Rheault

claims an expectation of privacy"); see also Rawlings v. Kentucky,

448 U.S. 98, 105 (1980) (no privacy interest in purse because

petitioner did not "have any right to exclude other persons from

[it]").

Other courts of appeals have reached the same conclusion

in circumstances remarkably similar to this case. For example, in

United States v. Befell, the defendant was arrested in the hallway

of a "multi-tenant rooming facility" in which he "occupied an

upstairs room in exchange for rent." 311 F. App'x 461, 463 (2d

Cir. 2009) (internal brackets omitted). After the district court

denied his motion to suppress, the defendant appealed on the basis

of his purported privacy expectation in the rooming house at large.

The Second Circuit, however, rejected his argument. It began with

the bedrock principle that "the defendant 'bears the burden of

proving . . . that he had a legitimate expectation of privacy in

[the area intruded upon].'" Id. at 463 (quoting Rawlings, 448 U.S.

at 104). Reviewing the "scant" evidence of communal living adduced

below, the court held that the defendant fell short of that burden:

[The defendant] provided scant evidence to support the
inference that he had a reasonable expectation of privacy
in the common hallway at [the rooming house]. He did not
endeavor to show circumstances regarding his relationship
with the other renters, their particular use of the
common areas, or any other factor that might conceivably

-36-
 form the basis of a conclusion that the officers'
presence in the common hallway of [the rooming house]
implicated [the defendant's] reasonable privacy
expectations.

Id. (emphasis supplied).22

The majority ignores Befell in favor of three cases that

are not especially useful. The linchpin in that trio was that

residents had to traverse common areas in order to get to shared

kitchens and bathrooms, making their arrangements more like single-

family homes. State v. Titus, 707 So. 2d 706, 708 (Fla. 1998);

People v. Garriga, 596 N.Y.S.2d 25, 28 (N.Y. App. Div. 1993); see

Reardon v. Wroan, 811 F.2d 1025, 1027 n.2 (7th Cir. 1987).23

Indeed, in Titus, the Florida Supreme Court expressly limited its

holding to common areas that linked such "inseparable features of

their 'home'":

Interior hallways in rooming houses are protected only by
virtue of linking such traditional rooms within the house
-- they provide rooming house residents with the only
means of access to these rooms, and are an inseparable
feature of their “home.” In other words, it is not any

22
Accord United States v. Mendoza, 281 F.3d 712, 715 (8th Cir.
2002) (rejecting argument that defendant had privacy interest in
vestibule of two-story duplex based on his bald assertion that he,
"his children, girlfriend, and her children . . . treated the upper
unit, the lower unit, and the vestibule as communal space")
(internal quotation marks omitted).
23
Reardon is distinguishable for the additional reason that the
Seventh Circuit relied on the unique character of a fraternity,
which it said was "intended to be something of an exclusive living
arrangement with the goal of maximizing the privacy of its
affairs." 811 F.2d at 1027 n.2. No such showing has been made in
this case.

-37-
 inherent nature of a hallway that controls, but rather
what the hallway links (i.e., individual self-contained
living units versus shared traditional living areas).

Titus, 707 So. 2d at 711; see also Garriga, 596 N.Y.S.2d at 29

("There is too, in our view, importance on another level in finding

the common internal hallway area of a rooming house a private, as

opposed to a public, place . . . . Clearly, it is economic

necessity that requires those who live in such humble circumstances

to dwell there. That they cannot afford to have their own kitchens

and bathrooms, and hallway access thereto, does not render such

areas 'public.'") (internal citations omitted).24

Here, Werra did not need to pass through common areas in

order to access his kitchen or bathroom. Rather, the record is

quite clear that Werra could -- and regularly did -- live

autonomously in his own self-contained unit on the third floor.

True, we do not know whether other units were similarly self-

contained, but that is precisely the point: it was Werra's burden

24
I reserve judgment on whether the majority's cases -- all
nonbinding, of course -- were decided correctly. My point here is
only that they are inapposite under the facts found by the district
court. Other courts that have considered the question head-on have
held that a rooming house resident's privacy interests begin at the
entrance to his or her room -- not the entrance to the entire
rooming house. E.g. United States v. Anderson, 533 F.2d 1210, 1214
(D.C. Cir. 1976) ("appellant's constitutionally protected privacy
interest began at the door to room eight rather than at the door to
the entire rooming house"); accord State v. Checkrowed, 822 S.W.2d
552, 554-55 (Mo. App. Ct. 1992) (no privacy interest in hallway of
boarding house where residents shared a kitchen and bathroom);
United States v. Williams, No. 05-191, 2007 WL 4302971, at *4 (D.
Conn. Dec. 6, 2007) (no privacy interest in third-floor closet of
rooming house where residents shared bathrooms).

-38-
to show, as the majority acknowledges, that tenants were

"'roommates in the same house,' not simply co-tenants sharing

certain common areas." Ante at 18 (quoting Reardon, 811 F.2d at

1027 n.2). By failing to put forward evidence concerning the

living arrangements of other tenants and their particular use of

common areas, Werra fell short of that burden. See, e.g., Befell,

311 F. App'x at 463.

The majority cobbles together several pieces of testimony

that, I am told, compel a contrary conclusion. In my opinion, none

withstands close scrutiny.

First, drawing from Cicerano's testimony, the majority

reports that "unlike an apartment building in which tenants

contract individually with the landlord, 63 Menlo Street was rented

as a whole by Cicerano." Ante at 13. In particular, the majority

points to Cicerano's description of 63 Menlo Street as "my house,"

id. at 13; see also id. at 18-19 ("the residents at 63 Menlo Street

were all living with Cicerano, in 'his' house, as part of a

nontraditional single-'family' household. As Cicerano put it,

Werra 'stayed at my house, he lived at my house.'"), and his

testimony that, although all his tenants "pitched in," Cicerano

ultimately paid "most" of the rent. Id. at 4; see also id. at 19

(faulting the district court for not addressing "the facts showing

that 63 Menlo Street was operated as a single household, including

Cicerano's notable testimony that he paid most of the rent").

-39-
Thus, according to my colleagues, "the tenants shared the house in

much the same way as would a traditional family." Id. at 16.

But however informal it may have been, the relationship

between Cicerano and his tenants was less familial than the

majority's characterization suggests. Tenants were assigned rooms

or apartments; at least some of those could be locked to the

exclusion of other tenants; and at least one -- Werra's third-floor

apartment -- was also fully self-contained. They paid rent to

Cicerano in order to occupy those spaces. And, as far as the

record shows, they were not related to Cicerano or necessarily on

close terms with him. Cicerano testified, for instance, that he

did not know the last name of one of his tenants. On this record,

the majority's analogy to a "traditional family" home is, in my

opinion, rather inapt.

Moreover, multi-unit homes were common in the area.

Detective Schaaf testified, for example, that there were "many

multifamily homes" in the vicinity of 63 Menlo Street. Based on

Det. Schaaf's testimony, the record description of Werra's self-

contained unit, and Werra's failure to adduce evidence concerning

the living arraignments of his co-tenants, I think it is

unreasonable to infer -- as the majority does -- that 63 Menlo

Street was the anomaly here. See, e.g., United States v. Cook, 277

F.3d 82, 84 (1st Cir. 2002) (when reviewing suppression denials, we

must "construe the record in the light most favorable to the

-40-
district court's ruling, drawing all reasonable inferences in the

government's favor").

And although Cicerano testified that he paid "most" of

the monthly rent, he never explained what he meant.25 He could have

meant several things: he could have meant, as the majority appears

to believe, that he paid nearly all of the rent; or, equally

plausible in my view, that he paid more than any other tenant but

still less than half of the rent. See Webster's Third New Int'l

Dictionary 1474 (1993) (defining "most" as "the greatest amount or

quantity" in addition to "the majority" of something). The latter,

if true, would cut against the majority's characterization of 63

Menlo Street. The salient point, however, is that Cicerano's vague

testimony is susceptible to different interpretations, and I see no

basis for rewarding Werra -- who lost his motion to suppress below

-- with the most favorable one. In fact, as noted, courts of

appeals are supposed to do the very opposite. See, e.g., Cook, 277

F.3d at 84.

Second, the majority refers to Werra's testimony that "he

had spent '[m]any nights' sleeping on a couch in the living room on

the first floor because 'when I was up on the third floor,

everybody wanted to come up on the third floor.'" Id. at 14; see

25
On cross-examination, the government sought to have Cicerano
quantify the amount of rent his tenants paid. Cicerano responded,
without elaboration, "[j]ust what [they] could."

-41-
also id. at 17 ("Werra's co-tenants were undeterred by the door to

the third floor when that space was 'needed' for their comfort and

enjoyment. Werra behaved similarly, claiming alternative space in

the house when the third floor was targeted by others.").

The district court, however, disregarded Werra's

testimony in that respect. Favoring Cicerano's version instead,

the district court found both that Werra could exclude others from

his apartment and only "sometimes" slept downstairs:

The third floor was Werra's personal space and he had the
ability to keep people out of that part of the building.
In addition to renting the third floor, Werra sometimes
-- "not a lot but once in a while," according to Cicerano
-- slept on the couch in the living room on the first
floor, with Cicerano's permission, because people would
"party" on the third floor.

Werra, 2008 WL 4280035, at *1 (emphasis supplied). Those findings

-- amply supported in the record -- were based on a credibility

determination, albeit an implicit one, that we review only for

clear error. United States v. Verdugo, 617 F.3d 565, 576 (1st Cir.

2010); see also United States v. Espinoza, 490 F.3d 41, 46 (1st

Cir. 2007) ("credibility calls -- with only rare exceptions -- are

the district court's prerogative"); United States v. Zapata, 18

F.3d 971, 975 (1st Cir. 1994) (appellate courts must "exhibit great

respect for the presider's opportunity to hear the testimony,

observe the witnesses' demeanor, and evaluate the facts at first

-42-
hand"). The record suggests no reason whatsoever to question that

determination.

The majority responds by asserting that, no matter

whether the district court credited Cicerano or Werra, "the fact

remains that it was an ordinary occurrence for others to use the

third floor and for Werra to relocate to the living room." Ante at

19 (emphasis supplied). According to the majority, that fact,

along with Werra's testimony that he moved some of his furniture

into the living room, "shows a belief that he had a personal claim

to the space." Id. These assertions are perplexing. The first

disregards the district court's fact-finding, which I have block

quoted (and emphasized) above, on that precise question.26 Werra,

2008 WL 4280035, at *1. The second is beside the point. As

discussed, Werra's subjective "belief" is meaningless unless

"society is prepared to recognize [it] as objectively reasonable."

Rheault, 561 F.3d at 59. I doubt that moving one's couch into

another tenant's living room, and then "sometimes" sleeping on it

after obtaining permission (which was not always granted here),

warrants societal recognition of a privacy interest. And even if

26
The majority's fallback position is that, even if the
district court impliedly credited Cicerano's account of how often
Werra slept downstairs, "there is no basis for concluding that the
court generally disbelieved Werra and hence we should disregard all
of his testimony." Ante at 19 n.11. I ask only that we defer to
the district court's credibility determination, as our precedent
requires, on this specific issue. In my opinion, the majority has
not done so.

-43-
one were to engage in that doubtful assumption, "the space" in

question is the foyer, where Werra was stopped, not the living

room. I discern no facts in the record that remotely suggest an

objectively reasonable privacy interest in the foyer (or, for that

matter, throughout the building at large).

Third, the majority points to Cicerano's testimony "that

people would sometimes congregate in the kitchen," ante at 15,27 and

to Werra's testimony that, in addition to the bathroom in his

third-floor unit, "bathrooms were located on the first and second

floors." Id. at 16. From these snippets, the majority declares

that "the record shows that the tenants shared use of the first-

floor kitchen and the second- and third-floor bathrooms." Id. at

17.

In my view, that inference is at best highly

questionable. As noted, Werra's central theory is that the tenants

of 63 Menlo Street lived communally. I think that it is telling,

however, that Werra failed to adduce any direct evidence that he

used a kitchen or bathroom other than his own. He or Cicerano --

or any of the several co-tenants, none of whom Werra called --

easily could have said so at the suppression hearing. The more

27
The majority paraphrases Cicerano's testimony on cross-
examination where the government asked whether "people would
sometimes congregate in the [first-floor] kitchen." Cicerano
responded "Yeah," with no elaboration other than to say that such
gatherings had not occurred recently in the wake of his mother's
death.

-44-
reasonable inference to draw from the testimony as a whole is that

Werra and others generally used the facilities that were assigned

to them. See, e.g., Cook, 277 F.3d at 84. And moreover, evidence

that tenants may have gathered sporadically in one of multiple

kitchens provides no reasonable basis to believe that life at 63

Menlo Street was anything like the communal arrangements described

in the cases relied on by the majority, in which all residents

shared a single kitchen out of necessity. Titus, 707 So. 2d at

708; Garriga, 596 N.Y.S.2d at 28; see Reardon, 811 F.2d at 1027

n.2.

In sum, I would hold that Werra failed to establish an

objectively reasonable expectation of privacy outside of his third-

floor apartment. Without that showing, he cannot contest the

officers' entry into 63 Menlo Street. New York v. Class, 475 U.S.

106, 112 (1986); Rheault, 561 F.3d at 59.

II.

The above conclusion requires me to address the search

and seizure of Werra's person. See Terry v. Ohio, 392 U.S. 1, 16

(1968). I conclude that Det. Schaaf lawfully detained and patted

Werra, on an objectively reasonable basis of officer safety, while

he and Trooper Fries executed a valid arrest warrant.

Ultimate constitutional questions like these call for de

novo review, Espinoza, 490 F.3d at 46 ("Legal conclusions,

-45-
including ultimate constitutional determinations (such as the

sufficiency of the facts found to support a conclusion that, for

example, reasonable suspicion exists or a seizure occurred),

engender de novo review."), and that review is "not confined to a

consideration of the grounds relied on by the district court."

United States v. Soule, 908 F.2d 1032, 1036 n.7 (1st Cir. 1990);

see also United States v. Rivera-Rivera, 555 F.3d 277, 283 (1st

Cir. 2009) ("In the end, we will affirm the denial of a suppression

motion if any reasonable view of the evidence supports it.").

I begin with the relevant background, taken from the

district court's rescript. Detective Schaaf knew Cicerano "from

his past encounters with law enforcement," and when Cicerano opened

the door Det. Schaaf immediately suspected that 63 Menlo Street had

become a "drug house." Werra, 2008 WL 4280035, at *1. After

entering the building, Det. Schaaf instructed Cicerano to round up

the tenants on the upper floors and bring them downstairs. While

individuals began to assemble in the foyer, Det. Schaaf "saw

movement out of the corner of his eye." Id. at *2. He "turned and

saw Werra walking out of the living room towards him" with his

hands "in his front pant pockets, 'half in and half out' and

'moving slightly.'" Id. Detective Schaaf "observed a clip of a

concealed pocket knife visible outside [Werra's] front right

pocket," and promptly relieved Werra of the weapon. Id. At that

point, Werra's left hand, which remained in his other pocket, "was

-46-
moving a little bit." Id. Fearing that Werra might still be

armed, Det. Schaaf conducted a pat frisk of Werra's front left

pocket. He felt a hard object that he recognized as a firearm,

removed it from Werra's pocket, and handed it to Trooper Fries.

Detective Schaaf then placed Werra under arrest. A brief struggle

ensued, after which Werra was subdued and taken into custody.

Based on these findings, which neither party contests,

the district court determined that both the detention and frisk

were reasonable. The court noted initially that the circumstances

did not warrant a Terry stop because there was no reasonable basis

to suspect that Werra was engaged in criminal activity. See Terry,

392 U.S. at 29 (investigatory stop requires reasonable suspicion

"that criminal activity may be afoot"). Nevertheless, it concluded

that the officers lawfully detained Werra under Michigan v.

Summers, 452 U.S. 692 (1981) (search warrant authorizes limited

detention of occupants during search for contraband). Although the

court recognized that Summers involved a search warrant, it

reasoned that the logic of Summers applied equally to cases, like

this one, where police enter a home in order to execute an arrest

warrant. As for the pat frisk, the court concluded that the

limited intrusion on Werra's person was justified because Werra was

visibly armed in a drug house suspected of harboring a fugitive.

See Sibron v. New York, 392 U.S. 40, 64 (1968); Terry, 392 U.S. at

27.

-47-
 I think that the pat and frisk is uncontroversial, based

largely on the reasons identified by the district court. The more

interesting question, in my opinion, is the stop. A prototypical

Terry stop takes place on the street. See, e.g., Terry, 392 U.S.

at 12 (dealing with "the myriad daily situations in which policemen

and citizens confront each other on the street"). We have,

however, applied the Terry doctrine to temporary detentions in and

around the home, United States v. Beaudoin, 362 F.3d 60, 69-70 (1st

Cir. 2004) (summoning the defendant outside his motel room),

vacated on other ground sub nom. Champagne v. United States, 543

U.S. 1102 (2005), and although the inquiry in our residential cases

tends to focus on officer safety, as far as I can tell we have not

formally abandoned the requirement that police articulate

reasonable suspicion of criminal activity in order to justify an

in-home stop. See, e.g., United States v. Parker, 549 F.3d 5, 8-9

(1st Cir. 2008) (summoning the defendant outside his hotel room on

reasonable suspicion of a felony); United States v. Romain, 393

F.3d 63, 75 (1st Cir. 2004) (detaining the defendant in an

apartment on reasonable suspicion that he had threatened the person

who placed the 911 call).

But I see this case differently. Detective Schaaf and

Trooper Fries entered a suspected drug house on the authority of a

valid arrest warrant. During the execution of that warrant, they

briefly detained a visibly armed occupant who approached them in a

-48-
confined area where they were outnumbered at least two-to-one. In

such circumstances, I believe that requiring a showing of

articulable criminal activity in order to justify a temporary

detention would unreasonably jeopardize officer safety. Like the

district court, I would apply the rule in Summers to situations,

like this one, where temporary detentions are necessary for the

police to execute an arrest warrant safely. And although the

district court does not appear to have considered Maryland v. Buie,

494 U.S. 325 (1990) (circumstances surrounding in-home execution of

arrest warrant authorize a "protective sweep"), I think that the

logic of Buie provides an additional basis for the same result.

I examine each below, beginning with Summers.

A.

In Summers, police encountered the defendant descending

the front steps of his house as they were about to search it for

drugs. 452 U.S. at 693. The officers requested his assistance in

gaining entry and detained him while they performed the search.

Id. They found drugs, arrested the defendant, and charged him with

possession. Id. at 693-94. He filed a motion to suppress, which

the state trial court granted; that decision was affirmed by

divided panels of both the state intermediary and supreme appellate

courts. Id. at 694. The Supreme Court took the case and reversed.

Justice Stevens, writing for the majority, held that "a

warrant to search for contraband founded on probable cause

-49-
implicitly carries with it the limited authority to detain the

occupants of the premises while a proper search is conducted." Id.

at 705. He reasoned that a "neutral and detached magistrate had

found probable cause to believe that the law was being violated in

that house and had authorised a substantial invasion of the privacy

of the persons who resided there." Id. at 701. A brief detention

in that circumstance, he continued, was "less intrusive than the

search itself," id., was unlikely to be "exploited by the officer

or unduly prolonged," id. at 702, and "would involve neither the

inconvenience nor the indignity associated with a compelled visit

to the police station." Id.

The defendant's brief detention was also supported by

several law enforcement interests. First, Justice Stevens observed

that law enforcement had an obvious interest in “preventing flight

in the event that incriminating evidence is found." Id. Second,

less obvious but sometimes more important, was their interest in

“minimizing the risk of harm to the officers” because “the

execution of a warrant to search for narcotics is the kind of

transaction that may give rise to sudden violence.” Id. And

third, they and others present had an interest in “the orderly

completion of the search” because an occupant's “self-interest may

induce them to open locked doors or locked containers to avoid the

use of force that is not only damaging to property but may also

delay the completion of the task at hand." Id. at 703. All these,

-50-
Justice Stevens concluded, further justified the defendant's brief

detention while officers performed the search.

Although we have not yet done so, other courts have

applied the rule in Summers to cases involving the in-home

execution of arrest warrants. United States v. Enslin, 327 F.3d

788, 797-98 (9th Cir. 2003) (police ordered occupant to show hands

during in-home execution of an arrest warrant for another

occupant); State v. Valdez, 68 P.3d 1052, 1057-58 (Utah App. Ct.

2003) (policed restrained occupant during in-home execution of an

arrest warrant for another occupant); People v. Hannah, 51 Cal.

App. 4th 1335, 1343-44 (Cal. App. Ct. 1996) (police ordered

occupant to remain seated during in-home execution of an arrest

warrant for another occupant); see Cherrington v. Skeeter, 344 F.3d

631, 638 (6th Cir. 2003) (involving claims brought under § 1983);

Anderson v. United States, 41 F. App'x 506, 507 (2d Cir. 2002)

(Sotomayor, J., on panel) (involving claims under the Federal Tort

Claims Act).

My review leads me to the same conclusion. Similar law

enforcement interests are present in this context. Most

importantly, brief detentions in such circumstances are justified

because they reasonably minimize the risk of harm to officers and

others present. Whether for the purpose of arresting a fugitive or

searching for contraband, entering a suspected drug house is

dangerous business. In those potentially volatile environments,

-51-
officers must have the authority to briefly detain individuals who

might be armed and dangerous, especially when those individuals,

like Werra, are visibly armed. Other courts have permitted similar

detentions when the threat to officer safety was far less obvious.

See, e.g., Enslin, 327 F.3d at 797-98 (no visible weapons; police

ordered occupant to show hands from beneath covers when he had just

awakened from sleep); Valdez, 68 P.3d at 1057-58 (no visible

weapons; police restrained occupant while he was sleeping because

his hands were concealed); Hannah, 51 Cal. App. 4th at 1343-44 (no

visible weapons; police ordered occupant to remain seated).

Moreover, such detentions prevent advanced warning of an

impending arrest that might cause fugitives to hide or flee the

premises. See Anderson, 41 F. App'x at 507 (holding, in reliance

on Summers, that police were justified in detaining occupants

during in-home execution of an arrest warrant in light of "the

relatively high likelihood that [they] would warn a possibly

dangerous person of impending arrest, coupled with the relatively

brief period of additional detention involved"). Indeed, such

detentions might even facilitate an arrest by inducing detainees to

assist the officers in locating a fugitive "to avoid the use of

force that is not only damaging to property but may also delay the

completion of the task at hand." Summers, 452 U.S. at 703.

Elements of both scenarios are on display in this case. Cicerano

initially agreed to assist the officers by assembling the tenants

-52-
downstairs, presumably based on his own self-interest in

maintaining decorum in the building. When Cicerano went upstairs,

however, he warned tenants who had warrants -- including Jeanine

Daley -- to remain upstairs in order to avoid arrest. It was only

after Det. Schaaf ascended the stairs, following his scuffle with

Werra, that he finally apprehended Daley.28

Werra argues that the disconnect between a search warrant

and an arrest warrant renders Summers inapplicable. His position

is overstated. True, a search warrant gives the police a ready

basis for determining that occupants of a residence subject to

search may have done something wrong; an arrest warrant does not.

But in my opinion the salient point in Summers was "the

interposition of the magistrate's determination of probable cause

between the zealous officer and the citizen." 452 U.S. at 704. Of

course, interposition is present whether the warrant authorizes a

search or an arrest. And, much like the search context, brief

detentions in the arrest context are unlikely to be "exploited" or

"unduly prolonged," because the end goal is the apprehension of the

individual identified in the arrest warrant, not the detention of

that individual's co-tenants. See id. at 702. In any event, I

would not necessarily apply Summers to all detentions in this

28
I do not mean to suggest that police had authority to detain
Cicerano. My point is only that briefly detaining individuals who
might be armed and dangerous, like Werra, would prevent them from
frustrating the execution of an arrest warrant, and, in some
situations, might even facilitate apprehension.

-53-
context, but only those reasonably necessary to protect officer

safety. So while the analogy may not be perfectly apt, I think

that the distinction is ultimately less important than Werra

claims.

B.

In Buie, police entered the defendant's home in order to

arrest him in connection with an armed robbery. 494 U.S. at 328.

As the officers fanned out through the first and second floors, one

of them announced that he would "freeze" the basement so that no

one could come up and catch them off guard. Id. The officer

shouted into the basement ordering anyone down there to come out.

The defendant soon emerged with hands raised. After he was

arrested, another officer entered the basement "in case there was

someone else" down there. Id. In the basement, the officer found

a red jump suit that connected the defendant to the earlier

robbery. The defendant's motion to suppress the suit was denied;

a jury later convicted him on the robbery charge. The state

intermediary appellate court affirmed, but the state high court

reversed on the ground that the suit should have been suppressed.

Id. at 389. On certiorari, the Supreme Court reversed.

Authorizing so-called protective sweeps, the Court stated

that police may employ "a properly limited sweep in conjunction

with an in-home arrest when the searching officer possesses a

reasonable belief based on specific and articulable facts that the

-54-
area to be swept harbors an individual posing a danger to those on

the arrest scene." Id. at 337. It reasoned that an in-home arrest

can pose a greater risk of danger than a typical on-the-street

Terry encounter:

A Terry . . . frisk occurs before a police-citizen
confrontation has escalated to the point of arrest. A
protective sweep, in contrast, occurs as an adjunct to
the serious step of taking a person into custody for the
purpose of prosecuting him for a crime. Moreover, unlike
an encounter on the street or along a highway, an in-home
arrest puts the officer at the disadvantage of being on
his adversary's "turf." An ambush in a confined setting
of unknown configuration is more to be feared than it is
in open, more familiar surrounding.

Id. at 332. In those circumstances, the Court concluded, arresting

officers may "take reasonable steps to ensure their safety during,

and while making, the arrest," id. at 334, as long as those

procedures were "aimed at protecting the arresting officers" and

lasted "no longer than is necessary to dispel the reasonable

suspicion of danger." Id. at 335.

We have extended Buie when necessary to protect officer

safety. For example, we have authorized police to conduct

protective sweeps in conjunction with the execution of search

warrants, Drohan v. Vaughn, 176 F.3d 17, 22 (1st Cir. 1999); United

States v. Daoust, 916 F.2d 757, 759 (1st Cir. 1990), and where the

existence of exigent circumstances prompts the entry of police,

United States v. Martins, 413 F.3d 139, 149-50 (1st Cir. 2005).

See also United States v. Lawlor, 406 F.3d 37, 41-42 (1st Cir.

-55-
2005) (applying Buie to protective sweep in house following arrest

outside of the home).

Although our cases were within the search context, other

courts have applied Buie's rationale to seizures. In United States

v. Maddox, for instance, the Tenth Circuit upheld the detention of

a potentially dangerous individual during an in-home arrest. 388

F.3d 1356, 1362 (10th Cir. 2004). There, while police arrested a

woman inside a mobile home, the defendant pulled into the mobile

home's driveway in a pick-up truck. Id. at 1359. An officer

stationed outside saw the defendant reach under his seat; because

the officer could not tell whether the defendant was placing or

retrieving something under the seat, he interpreted the action as

"an unknown threat" and instructed the defendant to remain in the

vehicle. Id. The court of appeals agreed that the brief detention

was lawful, reasoning that, like a protective sweep, a "protective

detention" was an obvious and reasonable measure to ensure officer

safety:

Because the ability to search for dangerous individuals
provides little protection for officers unless it is
accompanied by the ability to temporarily seize any
dangerous individuals that are located during the search,
we conclude that detaining potentially dangerous persons
for the duration of the arrest qualifies as a "reasonable
step[] to ensure the [officers'] safety."

Id. (quoting Buie, 494 U.S. at 334); accord State v. Ugalino, 111

P.3d 39, 48-49 (Haw. Ct. App. 2005) (applying Buie to a protective

detention during the in-home execution of an arrest warrant: "Even

-56-
if the officers lacked a reasonable suspicion that [the defendant]

was involved in criminal activity, they were justified in fearing

that [he] would use a concealed weapon against them if they did not

temporarily detain him and perform a pat-down search for

weapons.").

I would apply the logic of Maddox in this case. An

objectively reasonable officer in the same situation as Det. Schaaf

and Trooper Fries would have been concerned for her safety.

Although the record does not indicate that their target, Daley, had

a history of violence, they nevertheless entered a suspected drug

house in order to arrest a fugitive on her "turf." They were in a

confined area where they were outnumbered at least two-to-one. And

a man, whose hands were concealed in his pockets, approached them

armed visibly with a knife. Werra may not have approached the

officers in an overtly threatening manner, but the totality of the

circumstances reasonably suggested a threat. In response to that

threat, Det. Schaaf's actions were correspondingly proportionate:

he detained Werra only momentarily in order to remove the knife and

performed a pat frisk limited in scope to Werra's other pocket.

These minimally invasive actions were "reasonable steps . . . aimed

at protecting the arresting officers" and lasted "no longer than

[was] necessary to dispel the reasonable suspicion of danger."

Buie, 494 U.S. at 334-35.

* * *

-57-
 In sum, based on either Summers or Buie, or under the

collective weight of both, I would hold that police have limited

authority to detain an individual they encounter during an in-home

execution of a valid arrest warrant when they reasonably suspect

the individual might be armed and dangerous. In this case, because

I believe Det. Schaaf and Trooper Fries acted reasonably under the

circumstances, I would affirm.

III.

That is enough to affirm the district court's thoughtful

decision denying Werra's motion to suppress. But I will also

briefly address the majority's holding that the entry was illegal,

because I am concerned about the holding's practical consequences.

I begin, as before, with the district court's findings.

On their way to arrest Daley at her last known address, Det. Schaaf

and Trooper Fries spoke with a confidential informant ("CI").

Werra, 2008 WL 4280035, at *1. The CI, whom the officers

identified as "Christine," had provided Det. Schaaf "with reliable

information concerning the location of a suspect in the past." Id.

When asked about Daley's whereabouts, the CI responded that "Daley

was staying at 63 Menlo Street" and that she "had seen Daley there

recently."29 Id. Based on the CI's tip, and their suspicion that

29
The majority questions but does not directly challenge the
district court's finding that the CI told the officers that Daley
was "staying" at 63 Menlo Street. Ante at 4 n.1, 31 n.19. In
light of the imposing standard that our case law sets, Espinoza,

-58-
Daley -- a known drug user -- might well be staying at a "sober

house" like 63 Menlo Street, the officers proceeded to that address

instead. Id.; see also id. at *9 ("The tip that Daley was 'staying

at' that address came from a previously reliable informant and was

consistent with what Schaaf knew about both Daley's drug abuse and

the building at 63 Menlo Street."). To increase chances that Daley

would be home, they arrived "relatively early in the morning, at

approximately 10:00 a.m." Id. at *10.

Although the question is a close one, these findings

satisfy Payton's two-prong inquiry that police armed with a valid

arrest warrant may "enter a dwelling in which the suspect lives

when there is reason to believe the suspect is within." Payton v.

New York, 445 U.S. 573, 603 (1980); United States v. Graham, 553

F.3d 6, 12 (1st Cir. 2009) (recognizing that Payton is satisfied

when "the police 'reasonably believed' prior to entry that [the

suspect] (1) resided at the apartment and (2) would be present").30

490 F.3d at 46 ("A finding is clearly erroneous only when, upon a
careful review of the record, a court is left with a 'definite and
firm conviction that a mistake has been committed.'" (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))), the
majority properly left that finding intact.
30
In my view there is no serious question that the "reason to
believe" standard is satisfied by something less than probable
cause. That is the clear implication of our cases, see Graham, 553
F.3d at 12-14; see also United States v. Weems, 322 F.3d 18, 22
(1st Cir. 2003), and the position of every court of appeals, with
one exception, that has considered the question, e.g. United States
v. Thomas, 429 F.3d 282, 286 (D.C. 2005) ("the Supreme Court in
Payton used a phrase other than 'probable cause' because it meant
something other than 'probable cause'"); see generally 3 Wayne R.

-59-
 As for Payton's first prong, the officers had "reason to

believe" that Daley resided at 63 Menlo Street. Detective Schaaf

and Trooper Fries obtained information that Daley was "staying at

63 Menlo Street" during a face-to-face encounter with a reliable CI

who was personally known to them. It was specific and based on the

CI's first-hand observations. And the CI presumably knew that, if

that information was false, the officers could find her and hold

her accountable. We have not required police to corroborate tips

of this ilk in comparable circumstances. Cf. Romain, 393 F.3d at

73 (no independent corroboration required in order for police to

make Terry determinations following face-to-face encounter with

informant).

Moreover, other courts have held that Payton's first

prong was satisfied based exclusively on uncorroborated information

gleaned from reliable CIs. For example, in United States v. Gay,

the Tenth Circuit held that Payton's first prong was satisfied when

police engaged in a "face-to-face discussion" with a CI, who told

them "the location of the residence based on personal knowledge,"

and "presumably remained accountable if the tip was fabricated."

240 F.3d 1222, 1224-25, 1227 (10th Cir. 2001). Here, Daley's

LaFave, Search & Seizure § 6.1 (4th ed. 2007) (collecting cases;
stating, "it is generally accepted that the Payton 'reason to
believe' requirement . . . involves something less than the
traditional probable cause standard"). But see United States v.
Gorman, 314 F.3d 1105, 1115 (9th Cir. 2002). Against that
backdrop, I see no point in withholding a clear statement of our
standard, and thus to propagate uncertainty in future cases.

-60-
history of drug abuse, along with the officers' familiarity with

Cicerano and 63 Menlo Street's reputation, gave the officers at

least some additional indicia that the CI's information was likely

correct.31

As for Payton's second prong, the officers had "reason to

believe" that Daley would be present when they entered. In United

States v. Hayes, a case that bears an uncanny resemblance to this

one, the Seventh Circuit held that a 10:00 a.m. weekday entry

easily satisfied Payton's second prong. 209 F. App'x 548, 551 (7th

Cir. 2006). There, the court pointed to a tip from the building's

caretaker that the defendant had been there "recently" and to the

defendant's history of drug abuse. Id. (observing that the

defendant was "an unemployed drug addict with no car"); see also

Valdez v. McPheters, 172 F.3d 1220, 1230 (10th Cir. 1999) (noontime

entry on weekday reasonable in part because the defendant

"sometimes abused drugs").

31
The majority says that Gay is distinguishable because, there,
the CI "accompanied officers to that location and told them the
suspect was 'presently in his home.'" Ante at 30 n.18 (quoting
Gay, 240 F.3d at 1225). That is, of course, an accurate
description of the facts in Gay. But the Payton test has two
prongs, and each requires separate analysis. Gay holds, directly
contrary to the majority's holding here, that Payton's first prong
is satisfied based exclusively on an uncorroborated tip from a CI.
Gay, 240 F.3d at 1227. The fact that I rely on other authority
concerning Payton's second prong -- discussed below -- is quite
beside the point.

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 Similarly, here: the officers entered 63 Menlo Street at

10:00 a.m. on a weekday based on a tip from a reliable CI who had

seen Daley there "recently" and their knowledge that she had a

history of drug abuse. Considering also that Daley was a fugitive,

see El Bey v. Roop, 530 F.3d 407, 418 (6th Cir. 2008) (the

defendant's "fugitive status also increased the likelihood that he

might be at home during business hours"), the officers could

reasonably assume that she was at home when they entered. See

generally 3 LaFave, Search & Seizure § 6.1 (collecting cases;

stating, "in the absence of facts tending to show that the

defendant is not at home it is reasonable to infer that he would be

there").32

The prompt execution of arrest warrants serves an

important governmental interest. Armed with new and reliable

information about a suspect's whereabouts, police should be able to

32
The majority asserts that Hayes and other so-called time-of-
day precedents are distinguishable because, in those cases, "there
was no serious question that the location of the arrest was where
the defendant lived," ante at 28 (emphasis supplied), and,
similarly, "the location of the suspect's residence was well
established," id. at 30 n.18 (emphasis supplied). Again, the
majority improperly conflates Payton's two prongs. See supra note
10. In any event, I am not aware of any case that requires the
government to prove residency beyond "serious question," or show
that a suspect's residence is "well established," in order for it
to rely on the time of day as a basis for believing the suspect is
at home. Rather, at the risk of repetition, the test is "reason to
believe." Payton, 445 U.S. at 603; Graham, 553 F.3d at 13 ("the
police need not possess such rock-solid indicators of residence in
order to form a 'reasonable belief' that a suspect resides at a
given place"). I reject the suggestion that more is required.

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respond rapidly. This is especially true with respect to

fugitives, who often take steps to avoid apprehension. In this

case, requiring the police to delay apprehension in order to verify

information they obtained from a reliable CI disserves that

interest and upsets the balance Payton sought to strike.

I respectfully dissent.

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