United States Court of Appeals
For the First Circuit
No. 06-1978
UNITED STATES OF AMERICA,
Appellee,
v.
NICHOLAS RHEAULT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Lipez and Howard, Circuit Judges,
and Gelpí,* District Judge.
Edward J. Juel for appellant.
David Hennessy, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
March 27, 2009
*
Of the District of Puerto Rico, sitting by designation.
HOWARD, Circuit Judge. Appellant Nicholas Rheault
("Rheault") was charged with one count of conspiring to distribute
ecstasy, three counts of possession of ecstacy with intent to
distribute, and one count of being a felon in possession of a
firearm.1 Rheault moved to suppress the drugs and gun that formed
the basis of the charges, claiming that they were discovered
pursuant to a search that violated his Fourth Amendment rights.
The district court denied the motion, and Rheault subsequently pled
guilty to all five counts, conditioned on his right to appeal the
denial of the suppression motion.2 The court sentenced Rheault to
132 months in prison, followed by three years of supervised
release. Rheault appeals from the denial of the motion to suppress
and his sentence. We affirm.
I. FACTUAL BACKGROUND
A. The arrest and search
The facts essential to deciding this appeal are largely
not in dispute. In late 2004 Donald Whitney met on several
occasions with a drug purchaser to discuss the sale of ecstasy
tablets. Unbeknownst to Whitney, the buyer was an undercover agent
of the U.S. Drug Enforcement Agency ("DEA"). In connection with
each sale, agents saw Whitney enter a three-decker at 122-124
1
"Ecstacy" is the street name for the chemical compound 3,4-
methylenedioxymethamphetimine.
2
See Fed. R. Crim. P. 11(a)(2).
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Middle Street in Leominster, Mass. -- later determined to be
Rheault's residence -- and then proceed to meet the undercover
agent to consummate the sale. On one occasion, Whitney mentioned
that his supplier lived there. On another, agents saw Rheault
circling the location in his car where the drug deal was taking
place inside. Agents also observed Rheault watching a sale from a
distance.
DEA agents arrested Whitney on February 1, 2005. He
quickly agreed to cooperate with them. Following the agents'
instructions, Whitney called Rheault several times to arrange a
purchase of 200 ecstacy pills. Here the versions of events diverge
slightly. At his change-of-plea hearing, Rheault denied that he
agreed to this sale. The government claims to the contrary, and
further states that Rheault told Whitney that he could not deliver
the drugs until the following morning. Regardless, the agents did
not want to delay Rheault's arrest. Accordingly, after procuring
an arrest warrant they set off to apprehend him, forewarned by
Whitney that Rheault carried a nine-millimeter handgun with a laser
sight.
Upon their arrival at 122-124 Middle Street, agents tried
to lure Rheault outside by having his car towed. That proved
ineffective, so agents entered the building by a back stairway to
Rheault's second-floor apartment. One of Rheault's two roommates,
Alex Archambault, opened the apartment door and was greeted by
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agents with drawn weapons. After restraining Archambault,
determining that Rheault was not in the apartment, and hearing
sounds from above, the agents asked for and received Archambault's
key to a door that led to a different stairway. Agents went up to
a third-floor landing, where they found Rheault attempting to hide
behind a bookcase and took him into custody. In a disabled washing
machine3 about seven feet from Rheault's hiding spot, agents
discovered a nine-millimeter pistol with a laser sight, a bag
containing 44 ecstasy pills, ecstasy in powder form, cocaine and
LSD.
B. The apartment
Because the layout of 122-124 Middle Street is crucial to
our inquiry, we recount the physical characteristics of the
premises, based on testimony presented at the two-day suppression
hearing.
As previously noted, 122-124 Middle Street was a three-
story building. There was one apartment on each floor, and Rheault
lived in the second-floor apartment. The front door of the
building -- which was left unlocked -- opened to a landing that
contained the mailboxes for the three apartments. From this
landing, two doors were accessible. One door was to the apartment
on the first floor; the other led to an interior stairway shared by
3
The machine was neither plugged in nor attached to a water
source. It was not known whether it would have been operational if
properly hooked up.
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the second and third floor apartments ("the front stairway"). This
interior stairway door had a lock accessed from the outside by a
skeleton key4, and a deadbolt lock that could only be accessed from
the inside, in other words, only by tenants or other people already
within the apartments on the second or third floor. There was
conflicting testimony as to whether this deadbolt was usually
locked. The landlord testified that the deadbolt was not supposed
to be locked, while Rheault's roommate, Archambault, testified that
it was almost always locked.5 Both Rheault's apprehension and the
discovery of the gun and drugs in the washing machine took place on
the third floor landing of the front stairway.
The more accessible stairway was in the rear of the
building. It served all three apartments and was not locked from
the street. While tenants were permitted to use both stairways,
the testimony suggested that tenants on the second and third floor
relied almost exclusively on the rear stairway, as did delivery
persons and guests. The two stairways were not connected. Thus,
to get from the back stairway to the front stairway, it was
4
The landlord testified that he issued a key to one of Rheualt's
roommates; the roommate testified that he never received one from
the landlord, and had to have one made "from scratch." It was
undisputed that Rheault did not have a key to the front stairway
door.
5
The district court did not resolve this conflict. Instead, the
court assumed, without deciding, that the door was locked "all or
substantially all of the time."
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necessary to go through the second or third-floor apartment, as the
officers did when they sought to arrest Rheault.
The landlord testified that he occasionally used the
front stairway to allow, for example, cable television personnel
access to the basement. He also testified that tenants were not
permitted to use the front stairway and landings for storage, as
such use would create a fire hazard.6 Instead, each apartment had
its own storage area, which was large enough for a washing machine
or bookshelf. On occasion, he had asked tenants to remove stored
items from the front stairway landings.
The landlord testified that, although he had asked the
third-floor tenants to remove the washing machine from the third-
floor landing about a month prior to Rheault's arrest, they had not
done so. Moreover, additional items had been placed there,
including tables, chairs, a damaged couch, an unhinged door and a
desk. True to the maxim that "one man's trash is another's
treasure," Archambault testified that he took the desk from the
third-floor landing down to his own room in the second floor
apartment. Archambault also testified that he understood that the
front stairway and landings were to be kept clear. The third-floor
landing area, and the washing machine that was located in it, are
the focus of our inquiry.
6
The landlord was also a local firefighter.
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II. LEGAL DISCUSSION
A. The motion to suppress
Rheault filed a motion to suppress the gun, and later
amended the motion to include the drugs. The gist of the motion
was that the arresting officers had no legitimate basis to search
the area where they arrested Rheault.7 The government's objection
did not reach Rheault's substantive points, but instead argued that
the evidentiary haul was lawful because Rheault had no legitimate
expectation of privacy in the contraband's location.8 In a lengthy
oral ruling, the district court denied Rheault's motion.
We review the district court's denial of a motion to
suppress for clear error as to questions of fact; we apply de novo
review as to the application of law to those facts and to
conclusions of law. United States v. Boskic, 545 F.3d 69, 77 (1st
Cir. 2008); Vilches-Navarette, 523 F.3d at 12. Rheault has the
7
Specifically, the asserted grounds were that the evidence was
not in plain view; that there was no basis for a protective sweep;
and that the search did not qualify as "incident to a lawful
arrest."
8
The "expectation of privacy" issue has often been framed as one
of "standing." In Rakas v. Illinois, 439 U.S. 128 (1978), the
Supreme Court stated that the "definition of [Fourth Amendment]
rights is more properly placed within the purview of substantive
Fourth Amendment law than within that of standing." Id. at 140.
See, e.g., United States v. Vilches-Navarette, 523 F.3d 1, 13 (1st
Cir. 2008) ("It is well-settled that a defendant who fails to
demonstrate a legitimate expectation of privacy in the area
searched or the item seized will not have 'standing' to claim that
an illegal search or seizure occurred.") (citations omitted).
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burden of establishing that "his own Fourth Amendment rights were
violated by the challenged search or seizure." Rakas 439 U.S. at
131 n. 1; United States v. Mancini, 8 F.3d 104, 107 (1st Cir.
1993). 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. Thornley, 707 F.2d 622, 624 (1st Cir. 1983)
(citing United States v. Hershenow, 680 F.2d 847, 855 (1st Cir.
1982)). The Supreme Court has set out a two-part test for
analyzing the expectation question: 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. Smith v.
Maryland, 442 U.S. 735, 740 (1979).
The government argues that Rheault satisfied neither part
of the test. As to Rheault's subjective expectation of privacy, a
matter on which the district court did not rule, we disagree with
the government. The government premises its argument on the fact
that Rheault failed to testify that he had an actual expectation of
privacy in the third-floor landing or washing machine. While this
is an accurate accounting of Rheault's hearing testimony, we do not
attach the same legal significance to the failure that the
government does. The relevant question is whether Rheault was
"seek[ing] to preserve as private" the evidence at issue. Katz v.
United States, 389 U.S. 347, 351 (1967). We have little doubt that
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Rheault satisfies this criterion. Indeed, we have held that a
defendant meets the subjective expectation test where his "purpose"
in placing a box of contraband documents in a particular location
"was to hide them and their incriminating contents after [a] grand
jury subpoena issued." Thornley, 707 F.2d at 624; see also
Hershenow, 680 F.2d at 855 (defendant's subjective expectation of
privacy demonstrated because "his purpose in taking the box to [a
hiding place] shortly after the search warrant was executed at his
office was to hide it and its incriminating contents."). We are
satisfied that Rheualt's decision to place the gun and drugs inside
the washing machine on the third-floor landing sufficiently
evidences an intent to hide them, and thus demonstrates a
subjective expectation of privacy. But since "a legitimate
expectation of privacy means more than a subjective expectation of
keeping incriminating evidence hidden," id., we next turn to the
much closer question of whether Rheault's subjective expectation
was reasonable.9
9
Although the parties did not specifically address the standard
of review as it relates to this prong of the expectation of privacy
inquiry, in other cases we have reviewed de novo the district
court's determination of objective reasonableness, and we do so
here. See, e.g., Vilches-Navarette, 523 F.3d at 13-14; United
States v. Dunning, 312 F.3d 528, 531-32 (1st Cir. 2002). This
approach is in accord with other circuits. See, e.g., United
States v. Perry, 548 F.3d 688 (8th Cir. 2008); United States v.
Heckencamp, 482 F.3d 1142 (9th Cir. 2007); United States v. Denny,
441 F.3d 1220 (10th Cit 2006).
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Although we may start with the general proposition that
"it is beyond cavil in this circuit that a tenant lacks a
reasonable expectation of privacy in the common areas of an
apartment building," United States v. Hawkins, 139 F.3d 29, 32 (1st
Cir. 1998), whether to describe the third-floor landing area as
"common" is the heart of this matter. Thus, we eschew the
conclusory "common area" label and engage in what is necessarily a
fact-specific inquiry, taking into consideration the nature of the
searched location, and using our prior decisions for guidance. See
United States v. Beaudoin, 362 F.3d 60, 70 (1st Cir. 2004) ("Fourth
Amendment analysis is renownedly fact specific . . . .").
None of our prior cases are directly on point, in the
sense that none involved a residence with a lay-out identical to
the structure involved in this case, 122-124 Middle Street.
Nevertheless, the precedents are instructive. In Hawkins, for
example, we found that the defendant, a tenant in a 12-unit
building, had no reasonable expectation of privacy in the
unenclosed areas of the building's basement where storage
compartments assigned to each apartment were located. Id. 139 F.3d
at 32-33. In Thornley, we upheld the denial of a motion to
suppress incriminating business records which were found in the
basement storage area of a three-unit apartment house. Id. 707
F.2d at 624. We highlighted the fact that the defendant was not a
tenant in the building, the door to the storage area was unlocked,
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and another tenant was using the storage area before the defendant
placed the documents there. 707 F.2d at 624-25.
Similar to Thornley, Hershenow was another case involving
an attempt to hide incriminating records. There, after a search
warrant was executed at his office, the defendant took a sealed box
to a location where he had worked previously. 680 F.2d at 854. He
asked a maintenance worker to put the box in a storage barn. Id.
Months later, an employee found the box, which eventually came to
the attention of a postal inspector working on the defendant's
case. After learning of the circumstances of storage, the
inspector opened the box and found incriminating evidence. Id. at
855. The district court denied a motion to suppress, on the basis
that the defendant had no reasonable expectation of privacy in the
box or its contents. Id. In affirming the district court, we
first noted the following factors weighing against finding a
reasonable expectation of privacy: the defendant did not know the
precise location of the box, other than in the barn; he did not
have regular access to the barn; several months had passed since he
had inquired about the box; and he had no right of control over its
location. Id. The only countervailing factors we noted were that
the box was sealed and had the defendant's name on it. Id.
Rheault relies heavily on cases from other jurisdictions.
In United States v. Fluker, 543 F.2d 709 (9th Cir. 1976), the court
found that the defendant had a reasonable expectation of privacy in
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a corridor between the door of his basement apartment and the outer
doorway of the apartment building. Id. at 716. In so finding, the
court, while cautioning that its holding was "dictated more by the
narrow circumstances" of the case, id. at 715, noted that there
were only two other tenants in the building, and that the corridor
at issue served only the two basement apartments. Id. at 716.
This, the court said, gave the two basement tenants "considerably
more control over access to that portion of the building" and thus
a greater expectation of privacy than would be true of a larger
building. Id.
In United States v. Drummond, 98 F. Supp. 2d 44 (D.D.C.
2000), the area in question was also a small entryway behind a
locked door, and directly in front of the defendant's apartment.
Id. at 48. The building had two apartments -- the defendant's
ground-floor unit and a vacant unit upstairs. In finding for the
defendant, the court, relying in part on Fluker, noted that the
entryway was not common to anyone other than the defendant; that
the general public had no access; and that the expectation of
privacy was reasonable because "no one else would be in that
entryway without their permission -- not mail carriers or meter
readers, not other tenants or their guests . . . not anyone." Id.
at 49.
Rheault contrasts his situation with the one presented in
United States v. Concepcion, 942 F.2d 1170 (7th Cir. 1991), in
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which the court rejected an expectation of privacy claim in the
area between a locked outer door and the defendant's apartment door
in a five-unit apartment building. The court emphasized the fact
that all tenants used the same entrance and thus could admit
unlimited guests, and that the defendant's "goings-on in the common
areas" could not reasonably be expected to remain secret. Id. at
1172. Here, Rheault argues, the lack of multiple users compels the
opposite result.
The government argues that the third-floor landing at
122-124 Middle Street is analogous to the areas at issue in
Thornley and Hershenow, while Rheault's view is that Fluker,
Drummond and Concepcion are the appropriate guideposts. The
district court acknowledged the closeness of the issue and, after
considering the principles enumerated by this and other circuits,
denied Rheault's motion. The court relied on a number of factors,
including that Rheault "could not exclude the third-floor tenants.
It was not a designated storage area and one in which a reasonable
person would think that he could store items that were personable
[sic], or private, or of value, and be free from the scrutiny of
the public." The court also noted that Rheault had no right "to
exclude others from using the washing machine."
We agree with the district court that this is a close
case, the resolution of which is heavily dependent on particular
facts. And in the end, we agree with the district court's
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conclusion. Unlike the entryways in Fluker and Drummond -- which
were immediately outside the respective apartment doors -- the
third-floor landing is not, in our view, an area in which Rheault,
a second-floor tenant, could reasonably expect privacy.10 Also
weighing against Rheault is the landlord's testimony that the
front-stairway landings were not to be used as storage areas.
Thus, the reasonable expectations of anyone attempting to store
items there would not be privacy or security, but that the items
would be removed by someone -- either the landlord, or, as with
Archambault's reclaimed desk, a scavenger. This puts the defendant
on even more tenuous footing than the defendant in Hawkins,
endeavored -- unsuccessfully -- to suppress items that were in a
designated storage area. While the third-floor landing may have
been more "private" than a traditional lobby-like common area, it
was less "private" than the entryways in Fluker and Drummond, given
that the landlord expressly prohibited its use for storage and that
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. We conclude that such an
expectation is objectively unreasonable, and we therefore affirm
the district court's denial of Rheault's motion to suppress.
B. Sentencing
10
If this case had involved the second-floor landing, a different
outcome might result.
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Rheault sets forth several sentencing arguments. We
resolve all of them by resolving the first. Rheault argues the
district court erred in applying the career-offender enhancement to
his grouped drug convictions (counts one through four), see
U.S.S.G. § 4B1.111, because the relevant predicate felonies were
neither charged in an indictment nor proven beyond a reasonable
doubt.12 In so doing, Rheault argues against the continuing
viability of Almendarez-Torres v. United States, 523 U.S. 224
(1998). However, "whatever the continuing viability of Almendarez-
Torres, we have previously held that we are bound to follow it
until it is expressly overruled." United States v. Jimenez-Beltre,
440 F.3d 514, 520 (1st. Cir. 2006) (en banc), cert. denied, 127 S.
Ct. 928 (2007). Accordingly, we find the career-offender
enhancement appropriate and reject Rheault's argument. Since the
resulting career-offender offense level is greater than any other
offense level that could result from the other enhancements applied
11
A defendant is a career-offender if he was at least eighteen
years old at the time of the offense of conviction, the offense of
conviction is a felony that is either a violent crime or controlled
substance offense, and he has at least two prior felony convictions
of either a violent crime or controlled substance offense. Rheault
does not deny that he has the requisite priors, only that they were
not subject to the correct burden.
12
Application of the enhancement raised his base offense level to
thirty-two, and his criminal history category to VI. After
allowing a three-level reduction for acceptance of responsibility
-- for which the government moved -- a Guideline range of 151 to
188 months resulted. The court, after considering the factors in
18 U.S.C. § 3553(a), sentenced Rheault to 132 months' imprisonment.
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by the district court, we need not consider Rheault's arguments
relating to the remainder of the district court's Guideline
calculations. See U.S.S.G. § 4B1.19(b).
The district court's denial of Rheault's motion to
suppress and its sentencing decision are affirmed.
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