          United States Court of Appeals
                     For the First Circuit


No. 15-1495

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                          LAMAR YOUNG,

                      Defendant, Appellant.


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

          [Hon. George Z. Singal, U.S. District Judge]


                             Before

                  Lynch, Thompson, and Barron,
                         Circuit Judges.


     Edward S. MacColl, with whom Thompson, Bull, Bass & MacColl,
LLC, P.A. were on brief, for appellant.
     Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty, II, United States Attorney, was on brief, for
appellee.


                         August 19, 2016
              THOMPSON,   Circuit      Judge.         Defendant-appellant       Lamar

Young (Young) entered a conditional guilty plea and was convicted

of conspiracy to distribute and possess with intent to distribute

28 grams or more of cocaine base, in violation of 21 U.S.C.

§§ 841(a) & (b)(1)(B), and possession of a firearm in furtherance

of   a   drug    trafficking         crime,     in     violation   of   18     U.S.C.

§ 924(c)(1)(A).       Before us, Young challenges the district court's

denial   of     his   motion    to    suppress        evidence   obtained     by   law

enforcement officers while executing a warrant for his arrest.

Young argues that the evidence was improperly seized when the

officers   entered     his     girlfriend's          apartment   without     consent.

After careful consideration, we conclude that the officers had

insufficient grounds to reasonably believe that Young lived at or

would be present at the apartment and, therefore, lacked the

necessary level of belief to justify entering the apartment to

execute the arrest warrant without consent. Accordingly, we vacate

Young's conviction, reverse the district court's denial of his

motion to suppress, and remand for further proceedings.

                                         I.

              We recite the key facts as found by the district court,1

consistent with the record support, noting where relevant Young's


     1 The suppression hearing was held before a magistrate judge.
Young objected to the magistrate judge's recommended decision, but
the district court adopted the magistrate judge's factual findings
and legal conclusions, and denied Young's motion to suppress. To


                                        - 2 -
contrary   view   of   the   testimony   presented   at   the   suppression

hearing.   See, e.g., United States v. Werra, 638 F.3d 326, 328

(1st Cir. 2011).

           On March 11, 2014, the district court issued an arrest

warrant for Young following his indictment for conspiring to

distribute and possess with intent to distribute "28 grams or more

of a mixture or substance containing a detectable amount of cocaine

base."   That evening, six Lewiston, Maine law-enforcement officers

set out in search of Young, traveling to three different residences

and making four different stops, before finally locating Young at

a fourth location.       The search team included Lewiston police

officer and United States Bureau of Alcohol, Tobacco, Firearms and

Explosives (ATF) task force officer Ryan Rawstron (Rawstron),

Maine State Police trooper Thomas Pappas (Pappas), who was assigned

to the Maine Drug Enforcement Agency (MDEA), Lewiston police

officer and MDEA task force officer Tyler Michaud (Michaud), Joey

Brown (Brown) from the Lewiston Police Department, Auburn police

officer David Madore (Madore), and trooper Kevin Rooney (Rooney)

from the Maine State Police Department (collectively, and for

simplicity's sake, we will refer to the task force officers, police

officers, and trooper as "officers").




simplify, we refer to the magistrate judge's                findings    and
conclusions as those of the district court.


                                   - 3 -
           The officers began their search at the Howe Street

residence of Kayla Davidson (Davidson), where the officers had

located Young during a prior investigation.        Officer Rawstron had

also spoken with Davidson "shortly before" that night, and Davidson

had informed him during that conversation that she was dating

Young.   Davidson had further informed officer Rawstron that Young

had stayed with her at another apartment on Ash Street.         Neither

Young nor Davidson was at the Howe Street apartment when the

officers arrived.     The officers then decided to check the Ash

Street apartment, where Young and Davidson had previously stayed

with   another   woman,   Stephanie   Webster   (Webster).   Young   and

Davidson were not at the Ash Street apartment either.

           At this point, the officers traveled to the residence of

yet another woman, Crystal, who lived on Horton Street.              The

officers apparently "had information" that Young had, at some point

in the past, also been staying with Crystal.          Officer Rawstron

testified at the suppression hearing that the officers "were

familiar with" Crystal and the Horton Street address because they

"had [] done a controlled buy at that . . . address . . . fairly

shortly before."     When the officers arrived, Crystal was there,

with someone she was dating (not Young), but Young was, once again,

not present.

           Out of ideas, and having failed to locate Young — or

Davidson — thus far, the officers circled back to where they had


                                 - 4 -
begun their night, Davidson's Howe Street apartment.     This time

they ran into Webster, whose Ash Street apartment they had visited

earlier in the evening.    Webster, in exchange for the officer's

promise to forgo taking her to jail that night on outstanding

warrants and instead allow her to turn herself in the following

day, told them that if Young was not at her apartment on Ash

Street, or Davidson's apartment on Howe Street, or Crystal's on

Horton Street, then "he had to be back with his former girlfriend"

"Jen" on Walnut Street.    According to Webster, Young had stayed

with "Jen" "on and off, again a couple nights here and there" when

he was not with Davidson.      Not knowing the address, Webster

provided the officers with a description of the building.

          Although the officers had no way of knowing that Young

was not, in fact, with Davidson as they had failed to locate either

of them, the officers then traveled to the Walnut Street apartment

building Webster had described.        The six officers arrived at

approximately 11:00 p.m.   Spotting a familiar car parked outside

the apartment building, officer Rawstron realized that "Jen" was

Jennifer Coleman (Coleman).   Officer Rawstron knew Coleman from a

prior investigation, and knew that she had previously lived with

Young in an apartment on Tampa Street.        Based on that prior

investigation, officer Michaud also knew that Coleman and Young

had an "off-again, on-again" relationship.




                               - 5 -
          Upon     their   arrival,   officers   Michaud   and   Brown

positioned themselves at the front of Coleman's apartment building

by a fire escape, while officers Rooney and Madore guarded the

back of the building.      Meanwhile officers Rawstron and Pappas,

both armed and wearing bulletproof vests emblazoned with the word

"police," entered Coleman's apartment building through a back door

and climbed the three flights of stairs to Coleman's apartment.

The landing in front of Coleman's door was too narrow for both

officers Rawstron and Pappas to stand on with their equipment.

So, they quickly positioned themselves with Rawstron in the front

at Coleman's door and Pappas behind him, three or four steps down,

with his head level with the doorknob.     Once in position, officer

Rawstron knocked on Coleman's apartment door.       He heard someone

from inside the apartment ask who was at the door, but did not

respond as was his usual practice.

          Less than a minute later, Coleman's 22-year-old daughter

opened the door.    Officer Rawstron asked her where her mother was

and began to ask about Young when he noticed Coleman — who had

been lying in bed in her room at the opposite end of the hallway

— walking down the hallway to the front door.     Coleman reached the

officers within seconds but, by that time, officer Rawstron had,

without consent, stepped into the apartment, and Pappas had moved




                                 - 6 -
to stand in the doorway so that he could scan the hallway.2             Once

inside her apartment, officer Rawstron asked Coleman if Young was

there.      Coleman told officer Rawstron that her kids and Young were

present.         Officer Rawstron then told Coleman that he needed to

speak       to   Young   and,   again   without   asking   for   consent,   he

immediately walked by her and down the hallway.              Trooper Pappas




        2
       This version of events regarding the officer's entry into
Coleman's apartment was vigorously contested by Young's witnesses
at the suppression hearing.     Coleman's daughter testified, for
instance, that when she opened the apartment door an officer
pointed a gun in her face and then immediately walked past her
without her permission.     Similarly, Coleman testified that the
officers were already coming down the hallway by the time she
started for the door, and that the exchange between them took place
halfway down the hallway by the dining room. Moreover, exhibits
presented by Young and testimony elicited during the suppression
hearing suggest that the officers would not have been able to see
Coleman approaching down the hallway from the bedroom without
entering the apartment.     For example, trooper Pappas testified
that "as soon as you reach [the] door that led into the apartment,
there was nothing beyond it. You either went to the right or to
the left so basically what I was looking at was the wall." Pappas
added that he could only "begin to scan the interior portion of
the hallway" when he was "on the threshold of the door" but not
before. And, in fact, the government conceded that after talking
to officer Rawstron the prosecutor envisioned that "the hallway
[went] directly down from the door" and that when they saw pictures
of the entry they were "taken aback" because it was clear that
"you can't see the hallway from the threshold" and "you do have to
enter the apartment" to see down the hallway.      Regardless, the
district court supportably found that officer Rawstron had already
entered the apartment without consent as Coleman approached the
door and that he was already at least some distance inside her
apartment when he began to question her about Young's whereabouts.
Because officer Rawstron's unconsented-to entry is determinative,
we need not address in detail the discrepancies between the various
versions of events.


                                        - 7 -
followed.     Both officers drew their weapons.         Officer Rawstron

also carried a flashlight.

            As   officers    Rawstron   and   Pappas   reached   Coleman's

bedroom, officer Michaud, who was still guarding the front of

Coleman's apartment building, observed one of Coleman's front

blinds lift up, Young look out the window, and then the blinds

close.3     A few seconds after the blinds went down, Michaud saw

flashlights "scan across the window."

            Back inside the apartment, officer Rawstron had reached

Coleman's bedroom door, pushed aside a curtain that was covering

the doorway, and discovered Young kneeling on the bed.             Seeing

Young on the bed, officer Rawstron immediately pointed his firearm

and flashlight at Young and ordered him to show his hands.         Officer

Pappas, who was positioned behind officer Rawstron, also pointed

his firearm at Young.       Young complied.   Officer Rawstron holstered


     3 The district court found that "about the same time" that
officers Rawstron and Pappas entered Coleman's apartment building,
trooper Michaud "observed one of the front window blinds being
lifted, saw [Young] look out, and then saw the blinds close." But
a review of the record seems to offer a slightly more precise
timeline. Trooper Michaud testified at the suppression hearing
that it was "a few seconds after the blind went down, [that he]
saw some flashlights kind of scan across the window," and officer
Rawstron testified that as he approached Coleman's bedroom he had
a flashlight in one hand. Officer Rawstron also testified that
because Young was on the bed in a kneeling position with his hands
under the blankets when he entered the room, he "waved his firearm
and flashlight at him and ordered him to show his hands."
Accordingly, it seems that trooper Michaud must have seen Young
just before officers Rawstron and Pappas reached Coleman's bedroom
door.


                                   - 8 -
his weapon, grabbed Young's right arm, and ordered Young to move

away from the bed.    Young followed officer Rawstron's orders, and

then trooper Pappas also holstered his firearm.

          Having secured Young, officers Rawstron and Pappas began

to question him.     Over the course of the next hour the officers

interviewed Young, who ultimately revealed the location of two

large bundles of what appeared to be crack cocaine, which were

inside a dresser drawer, and a firearm, which had been hidden under

the mattress.   The officers did not have a warrant, or, at that

time, Coleman's consent to search Coleman's residence.   During the

interrogation of Young, officer Michaud "kept watch over" Coleman

and her family in the apartment's kitchen and living area.

          The district court found that "[f]rom the time police

entered the Coleman apartment, they were in control of it."      In

the hour they spent in Coleman's apartment, neither Rawstron nor

Pappas raised their voices, touched Young, or handcuffed him. They

also did not advise Young of his Miranda rights.     See Miranda v.

Arizona, 384 U.S. 436, 444 (1966).      After seizing the drugs and

the firearm, officer Rawstron informed Young that he was under

arrest, placed him in handcuffs for the first time that evening,

and escorted him out to trooper Rooney's car.      Before escorting

Young from the apartment, the officers asked for Coleman's consent

to a dog search, and after removing Young from the apartment, they




                                - 9 -
finally asked her permission to search the apartment.          Coleman

consented to both searches.

            Young subsequently moved to suppress the evidence seized

at the time of his arrest, arguing that the officers had illegally

entered Coleman's apartment without consent because they lacked a

reasonable belief that Young lived there and that he was present.

Young also sought to suppress all statements made on March 11,

2014, and the fruits thereof, on the grounds that those statements

were made in violation of Miranda.        The government conceded that

all but one of Young's statements were obtained in violation of

Miranda.    Accordingly, the district court granted Young's motion

to suppress his statements, except as to an initial "spontaneous"

statement, which preceded any interrogation and was, therefore,

admissible.4   However, the district court denied Young's motion to

suppress the evidence seized.

            Applying Payton v. New York, 445 U.S. 573 (1980), and

its progeny, the district court concluded that "at the time of

their entry, the officers harbored a reasonable belief that the

defendant   resided   there."5    Specifically,   the   district   court


     4 Upon entering Coleman's bedroom, officers Rawstron and
Pappas informed Young that they had a warrant for his arrest for
a drug conspiracy. Young responded, "Fuck, that means somebody's
talking about me."     The district court concluded that this
"statement was not the product of coercive police activity but,
rather, a spontaneous, voluntary utterance."
     5 As a threshold matter, the district court concluded that if
officers reasonably believe an arrestee subject to a warrant


                                 - 10 -
pointed to (1) Webster's statement that "if [Young] was not at the

Ash Street, Howe Street, or Horton Street apartments, he had to be

back with his former girlfriend" where he had stayed on and off

when he was not with Davidson; (2) Webster's relative reliability

since a "face-to-face informant" should generally be thought of as

"more   reliable   than   an   anonymous   telephone   tipster,"   quoting

United States v. Gay, 240 F.3d 1222, 1227 (10th Cir. 2001); (3)

the fact that officer Rawstron recognized Coleman's car parked

outside her apartment and that officers Rawstron and Michaud knew

that Coleman had previously been in a relationship with Young and

that they had lived together; (4) the fact that the officers had

"eliminated three other addresses as places where the defendant

might be found; and (5) "to cinch matters," the fact that Coleman

confirmed that Young was present.          The district court added that

officer Michaud seeing Young open the blinds while he stood guard

outside Coleman's apartment "strengthen[ed] the case" that the

officers had a reasonable belief that Young resided at Coleman's

apartment, but noted that this fact was "not necessary" to the

district court's conclusion.

           In addition, the district court determined that "[t]he

time of day that officers knocked on the door . . . 11:00 p.m.,



resides at the targeted residence, then Payton v. New York, 445
U.S. 573 (1980) applies -- not Steagald v. United States, 451 U.S.
204 (1981).


                                  - 11 -
when   people     typically       are     home    —    coupled   with   Coleman's

confirmation of the defendant's presence, sufficed to confer a

reasonable belief that [Young] was there."                   The district court

further concluded that the drugs and firearm seized "need not be

excluded simply because [they were] discovered as a result of

unwarned questioning in violation of Miranda," quoting United

States v. Jackson, 544 F.3d 351, 361 (1st Cir. 2008), and that the

government had met its burden to demonstrate that the search of

Coleman's bedroom and the seizure of the drugs and gun were valid

pursuant to Young's voluntary (if un-Mirandized) statements and

that Young "impliedly consented" to the seizures.

            As   a   result,      Young   conditionally      pleaded    guilty   to

conspiracy to distribute at least 28 grams of cocaine base and

possession of a firearm in furtherance of a drug-trafficking crime,

reserving   his      right   to    appeal       the   district   court's   adverse

suppression rulings.         The district court then sentenced Young to

108 months' imprisonment on the conspiracy count and a mandatory

consecutive 60 months' imprisonment on the firearm count.                     This

appeal followed.

                                          II.

            Here, Young challenges the officers' initial entry into

Coleman's apartment.         He argues that the officers violated his

Fourth Amendment rights because they lacked a reasonable belief

that he resided at Coleman's apartment and was present when they


                                        - 12 -
entered the residence. Alternatively, Young argues that the search

was   conducted   without    voluntary   consent,   and   that   no    other

exception to the warrant requirement applies.

           In reviewing the district court's denial of a motion to

suppress, we review its factual findings for clear error and its

legal conclusions de novo.      United States v. Graham, 553 F.3d 6,

12 (1st Cir. 2009).         Young bears the burden to show a Fourth

Amendment violation.    Werra, 638 F.3d at 330.

           We begin with Young's challenge to the officers' initial

entry into Coleman's apartment, "understanding that if we find

this entry unjustified the evidence discovered subsequent to it

must be suppressed."         Graham, 553 F.3d at 12.         "The Fourth

Amendment provides protection against 'unreasonable searches and

seizures,'" and "because 'the physical entry of the home is the

chief evil against which the wording of the Fourth Amendment is

directed[,] . . . [i]t is a basic principle of Fourth Amendment

law that searches and seizures inside a home without a warrant are

presumptively unreasonable.'"      El Bey v. Roop, 530 F.3d 407, 414

(6th Cir. 2008) (alterations and omission in original) (quoting

Payton, 445 U.S. at 585-86).      In Payton, "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.'"              Werra,




                                 - 13 -
638 F.3d at 336-37 (quoting Payton, 445 U.S. at 603).6     Ensuing

case law makes clear that "[e]ven if it becomes known after entry

that the residence is not the suspect's, the entry is justified if

the police had 'reasonably believed' that (1) the suspect resided

at the location and (2) the suspect would be present."7     United

States v. Hamilton, 819 F.3d 503, 506 (1st Cir. 2016) (footnote

omitted) (quoting Graham, 553 F.3d at 12).     "Conversely, absent

exigency or consent, an officer may not search a third-party's

residence on the basis of an arrest warrant without having a search

warrant for the premises."    Solis-Alarcon v. United States, 662

F.3d 577, 580 (1st Cir. 2011).


     6 The parties do not appear to challenge the application of
Payton to this case. And the government assumes for the purpose
of this appeal that Young established a reasonable expectation of
privacy in Coleman's apartment sufficient to justify Fourth
Amendment protection.     However, the parties do dispute the
requisite level of belief that is necessary as to the residency
and presence requirements under Payton.        Specifically, they
dispute whether law enforcement must demonstrate that they had
"probable cause" or a "reasonable belief" to believe that Young
lived at Coleman's apartment and was present on the evening of
March 11. As we have noted previously, "[a]lthough most circuits
to have considered the issue have adopted the 'reasonable belief'
standard, and treat it as less stringent than probable cause," we
have never explicitly decided the issue. United States v. Werra,
638 F.3d 326, 337 (1st Cir. 2011) (collecting cases) (noting only
that we "have implicitly accepted the majority view"). Here, we
need not settle the matter because we conclude that the government
cannot meet even the less stringent "reasonable belief" standard.
     7 As the concurrence points out, the government conceded that,
under Payton, a two-part inquiry applied to this case. Therefore,
we do not consider whether the alternative approach adopted by the
Second Circuit in United States v. Bohannon, No. 14-4679-cr, 2016
WL 3067993 (2d Cir. May 31, 2016) is correct.


                              - 14 -
            Young   asserts     that    neither      the   residency   nor   the

presence    inquiry       was   satisfied,      arguing     that    there    was

insufficient evidence that officers reasonably believed that he

lived at Coleman's apartment or was present, and that the district

court erred by considering "information gathered only after the

officers crossed the threshold" of Coleman's apartment to find

that the officers had the requisite level of belief necessary to

support their entry.       In particular, Young challenges the district

court's reliance on Coleman's post-entry confirmation that Young

was present as a basis for concluding that the officers possessed

a reasonable belief before they entered the apartment that Young

resided there and was present.             Young likewise challenges the

district court's conclusion that officer Michaud's testimony —

that   he   saw   Young    at   the    window   of    Coleman's    apartment   —

"strengthen[ed] the case" that the officers had the requisite level

of belief prior to their entry, arguing that the record evidence

establishes that officers Rawstron and Pappas were already inside

Coleman's apartment when Michaud observed Young at the window.

            As an initial matter, we agree with Young that, to the

extent that the district court relied on post-entry information to

"cinch" or "strengthen" its finding that the officers reasonably

believed that Young resided at and was present at Coleman's

apartment, the district court erred.            See Payton, 445 U.S. at 590

(noting that "the Fourth Amendment has drawn a firm line at the


                                      - 15 -
entrance to the house"); Graham, 553 F.3d at 14 ("What the police

discovered      after    they   entered   the    apartment   cannot   help   us

determine what the officers could have reasonably believed before

entering the apartment.").         And, in fact, the government does not

seem to disagree, conceding that "the officers crossed the 'firm

line' at the threshold" before being told by Coleman that Young

was inside.      Rather, the government argues that "the preexisting

information" had "already reasonably led the officers to believe

Young was staying there and present at the time."8

              To determine whether the officers possessed a reasonable

belief that Young resided at Coleman's apartment then, we consider

that       preexisting    information.          Discarding   all   post-entry

information, we are left with the following relevant information:

(1) Webster's statement that "if [Young] was not at the Ash Street,



       8Although the government seems to acknowledge that
information gathered post-entry cannot support the entry itself,
they nevertheless seek to rely on trooper Michaud's sighting of
Young at Coleman's bedroom window to satisfy the presence inquiry
of Payton — that officers reasonably believed Young was present.
But as discussed in detail above, the record reveals that officers
Rawstron and Pappas were already inside the apartment and, in fact,
only steps away from Coleman's bedroom door when Young looked out
the window. As such, this sighting cannot support a finding that
the officers possessed the requisite level of belief before their
entry into the apartment. And, although the concurrence suggests
that officer Michaud's observation of Young at Coleman's window
may have somehow justified a subsequent entry into the apartment
(even though officer Michaud was part of the search team that
violated Young's Fourth Amendment rights), the concurrence cites
no cases supporting such a proposition in a case like this one,
and we have found none.


                                    - 16 -
Howe Street, or Horton Street apartments, he had to be back with

his former girlfriend" where he had stayed on and off when he was

not with Davidson; (2) the fact that Webster was not an anonymous

tipster; (3) the fact that officer Rawstron recognized Coleman's

car parked outside her apartment and that officers Rawstron and

Michaud knew from a prior investigation that Coleman and Young had

previously lived together; and (4) the fact that the officers had

"eliminated three other addresses as places where the defendant

might be found."

            Mindful that we must "examine the information known to

the officers in the totality and not in isolation," Graham, 553

F.3d at 14, we are nevertheless skeptical that these facts and

circumstances are sufficient to support the residence inquiry —

that the officers reasonably believed that Young resided with

Coleman at the Walnut Street apartment before they entered her

apartment.     Although   this    case     has   none   of    the   "rock-solid

indicators of residence" present in other cases, see, e.g., Graham,

553 F.3d at 13 (explaining that "certain facts" such as a suspect's

"credit card applications, utility bill, car registration, and

mail" being directed to a house "will almost always give rise to

a reasonable belief that the subject of an arrest warrant resides

at   the   place   entered"),    we    recognize   that      such   "rock-solid

indicators" are not necessarily required.               Still, the evidence

here is sparse even when compared to other cases where we have


                                      - 17 -
found the residency and presence requirements satisfied.                 See,

e.g., id. at 13 (finding police had reasonable belief defendant

resided    at   the   apartment    because   a   police   report   identified

defendant and his address, a probationer reported defendant was

"staying at" the apartment, and a person outside of the apartment

confirmed defendant was inside); United States v. Jones, 523 F.3d

31,   37   (1st   Cir.   2008)    (finding   police's     belief   objectively

reasonable because hotel manager confirmed defendant rented Room

318 for a three-week period, and a man in the parking lot confirmed

defendant was inside Room 318); United States v. Pelletier, 469

F.3d 194, 197, 200-01 (1st Cir. 2006) (finding reasonable belief

when defendant's girlfriend's sister confirmed defendant was at a

specific motel room, the motel room was registered in her name,

and the maintenance man confirmed defendant was in the specific

room).

            To justify the officers' entry, the government relies

heavily on Webster's reliability and on her statement that "if

[Young] was not at the Ash Street, Howe Street, or Horton Street

apartments, he had to be back with his former girlfriend."                But

this statement was not sufficiently definitive or reliable to

support a reasonable suspicion that Young was living with Coleman.

To be sure, in some circumstances a statement by a reliable

informant that a suspect is "staying" with or "living" with a

particular person might support a reasonable suspicion that the


                                    - 18 -
suspect lives there, see, e.g., United States v. Risse, 83 F.3d

212, 216–17 (8th Cir. 1996) (noting that "use of the colloquial

term 'staying with'" can be interpreted to mean "living with"),

but Webster did not inform officers decisively that Young was

"staying" with Coleman.        She said only that if Young was not

staying at Ash Street, Howe Street, or Horton Street, then he had

to be back with Coleman, but she did not actually confirm that

Young was not, in fact, staying at those other apartments.             Far

from definitive, Webster's statement was closer to a guess than to

a reliable tip.     And Webster couched the statement even further,

qualifying that Young had — at some point — stayed with "Jen" "on

and off, again a couple nights here and there" when he was not

with Davidson.      Importantly, neither the officers nor Webster

actually knew that Young was not with Davidson since the officers

had failed to locate either of them.          For all the officers knew,

Young was, indeed, staying with Davidson and they were simply not

at home.

             Moreover, Webster's statement did not appear to be based

on any actual, present knowledge of Young's whereabouts.           She did

not   suggest   that   she   had   actually   seen   Young   at   Coleman's

apartment.      Nor did she state conclusively that she knew that

Coleman and Young were back together. She merely stated that Young

had previously stayed with Coleman and must be back there if the

officers could not find him anywhere else, but she never explained


                                   - 19 -
why this must be so or gave the basis for this knowledge.                  And the

officers took no steps (e.g., conducting surveillance or other

interviews) to verify that Young's prior relationship with Coleman

had continued.        The fact that officers Rawstron and Michaud also

knew   from    a    prior    investigation      that   Coleman    and   Young   had

previously lived together does nothing to get them over this hurdle

because their information was similarly dated.                    And, prior to

speaking to Webster, it does not seem that the officers had reason

to believe that Young and Coleman's relationship was ongoing since

her apartment was not among those they had thought to visit.

              In    response   to   Young's     argument   that   the    officers'

behavior on the evening of March 11 amounted to impermissible

canvasing, the government notes correctly that suspects may have

more than one residence for purposes of the Payton inquiry.                     But

the officers did not begin their night knowing that Young would be

at one of several apartments where he was known to reside and

simply proceed to check each one.               To the contrary, the officers

thought   that       Young   was    with   Davidson    because    of    Davidson's

statement to officer Rawstron "shortly before" that night that

they were dating, and, prior to Webster's statement, the officers

seemed to have no inkling that Young was living at Coleman's

apartment.         Nor did they seem to believe, prior to speaking to

Webster, that Coleman's apartment was one of several places that

Young currently lived.


                                       - 20 -
          Even assuming that the officers had a reasonable belief

that Young resided at Coleman's apartment, however, there is

nothing in this record to support Payton's presence requirement —

that the officers reasonably believed that Young was present when

they entered Coleman's apartment.      The district court relied on

only one pre-entry piece of information to justify the officer's

entry, that being "[t]he time of day that officers knocked on the

door."   Officers arrived at Coleman's apartment at approximately

11:00 p.m., but the time of day, standing alone, is insufficient

to support the conclusion that the officers had a reasonable basis

to believe that Young was present at Coleman's apartment.       See

Werra, 638 F.3d at 339.   As we have previously noted, "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."

Id. at 340 n.19.    Here, the officers knew only that Young had

previously stayed with Coleman, and that he might be with her if

he was not with Davidson at either the Howe Street or Ash Street

apartments, and because he was not with Crystal at the Horton

Street apartment.

          The time of day and the fact that officer Rawstron

recognized Coleman's car in front of her apartment would likely

have been sufficient to support a reasonable belief that Coleman

was present at the apartment at 11:00 p.m., but those facts do


                              - 21 -
nothing to support the officers belief that Young was there.          And,

as noted above, the officers did nothing to confirm Young's

presence   before    entering   the   apartment    "by,      for   example,

conducting surveillance or placing a telephone call to the house."

Id. at 338.   Moreover, there is no evidence in the record to even

suggest that Young was typically at home at 11:00 p.m., wherever

he resided.   See id. at 340.

           Viewing   the   information   known    to   the    officers   in

totality, we therefore conclude that the information that was

available to them before they entered Coleman's apartment was

insufficient to support a reasonable belief that Young resided

there and was present.       Accordingly, the officers' entry into

Coleman's apartment violated Young's Fourth Amendment rights.

Having reached this conclusion, we need go no further as any

evidence discovered subsequent to this unlawful entry must be

suppressed.   See Graham, 553 F.3d at 12.          We therefore vacate

Young's conviction, reverse the district court's denial of his

motion to suppress, and remand for further proceedings consistent

with this opinion.



                     —Concurring Opinion Follows—




                                - 22 -
          LYNCH,   Circuit   Judge,   concurring.   Lamar   Young   was

convicted, pursuant to his conditional guilty plea, of drug and

weapons charges.    That conviction has now been set aside.         The

police had a warrant for Young's arrest, and in my view -- in

accord with the factfinding in the district court -- the officers

acted reasonably in locating and arresting him.     The positions the

prosecution chose to take, and chose not to take, on two different

issues lead me to this concurrence.

          I agree with the majority that there was insufficient

evidence to support a reasonable belief9 that Young resided at

Jennifer Coleman's apartment.     Our analysis takes the form of a

two-part Payton inquiry because the government chose that legal

theory.   See United States v. Hamilton, 819 F.3d 503, 506 (1st

Cir. 2016) (articulating the two inquiries). But I am not inclined

to think either that this case is about "residence" or that a two-

part Payton inquiry ought to apply.        Because the Walnut Street

property was Coleman's residence -- not Young's -- I consider

Young's Fourth Amendment interests to be far weaker than they would

have been at Young's own residence.      See Minnesota v. Carter, 525

U.S. 83, 88 (1998) ("[T]he extent to which the Fourth Amendment


     9    I also agree that, even assuming the Payton "reasonable
belief" standard is something less than probable cause, the
government did not prove even that. See supra at 14 n.6; United
States v. Hamilton, 819 F.3d 503, 506 n.5 (1st Cir. 2016) ("We
assume without deciding that reasonable belief is a lesser standard
than probable cause . . . .").


                                - 23 -
protects people may depend upon where those people are."); United

States v. Battle, 637 F.3d 44, 48 (1st Cir. 2011) ("To prevail on

a [Fourth Amendment] claim . . . a defendant must show as a

threshold matter that he had a legitimate expectation of privacy

in the place or item searched.").

             Rather, I consider this case to be about whether the

police had a reasonable belief that Young, for whom there was an

outstanding arrest warrant, would be located at the premises on

Walnut Street.     In answering that question, I would employ the

standard adopted by our sister court in United States v. Bohannon,

No. 14-4679-cr, 2016 WL 3067993 (2d Cir. May 31, 2016).     See id.

at *6 ("[I]f, at the time of entry, law enforcement officers

possessed a valid warrant for the subject's arrest and reason to

believe that he was then in the premises entered, the subject of

the arrest warrant will not be heard to complain that entry was

not authorized by a search warrant."); id. at *13 ("The third-

party resident's Fourth Amendment right in such circumstances to

have the entry into his home authorized by a search warrant does

not extend to the subject of the arrest warrant." (citation

omitted)).     And I would answer that question in the affirmative.

Each step of the investigation made the officers' belief as to

Young's location more and more reasonable.       In this regard, I

disagree with my colleagues.




                                - 24 -
             I concur, nevertheless, because the prosecution failed

to satisfy Payton's residence inquiry.            The prosecution agreed

with the defense's position that Payton's two-part inquiry applied

and so represented to the district court -- both to the magistrate

judge and to the district judge.      And, in my view, the prosecution

should be bound by the theory it adopted.          I do not fault either

that court or ours for adhering to the path agreed upon by both

the government and the defendant.

             The prosecution also made a second choice that leads me

to concur.      The inevitable discovery doctrine "allows for the

admission of [otherwise excludable] evidence that would have been

discovered even without the unconstitutional source."              Utah v.

Strieff, 136 S. Ct. 2056, 2061 (2016) (citing Nix v. Williams, 467

U.S. 431, 443–44 (1984)).         The government's brief makes only a

glancing reference to the doctrine of inevitable discovery -- and

only in service of an argument that Coleman's consent to the search

of her home would have led inevitably to discovery of the seized

cocaine and firearm.     The government notably did not argue that

officer Michaud, standing outside Coleman's residence, saw Young

inside at the window and so knew that Young was present in that

apartment.      Regardless   of   whether   the   officers   at   Coleman's

apartment door otherwise had a reasonable basis to believe Young

was located inside the apartment, officer Michaud's observation

could have justified his own entry -- or the entry of a second


                                  - 25 -
group of officers from outside the building -- and perhaps would

have led inevitably to discovery of the disputed evidence.               See

United   States   v.   Almeida,   434   F.3d   25,   28   (1st   Cir.   2006)

(observing that the deterrence rationale for the exclusionary rule

has minimal force "if the evidence would have been discovered

lawfully" (citing Nix, 467 U.S. at 444)); United States v. Scott,

270 F.3d 30, 43 n.7 (1st Cir. 2001) ("[We have] rejected a strict

requirement that the alternate legal avenue of investigation be

actively pursued at the time of the illegal search or seizure.").

           Having failed to take advantage of these justifications

for its search of Coleman's residence, the government must now

live with the consequences.




                                  - 26 -
