Petition — Arboleda v. United States

upreme Court, U.S.

FILED

NOV 10 1980

80-954

In The

MICHAEL RODAK, JR. CLERK

Hupreme Court of the Hnited States ——

-+—

October Term, 1980

OSCAR ARBOLEDA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

IRA LEITEL

Attorney for Petitioner

2 Lafayette Street

New York, New York 10007

(212) 227-0030

IRA LEITEL

CAROL MELLOR

- On the Petition

—e

LUTZ APPELLATE PRINTERS, INC.

2799 law and Financial Printing

South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.

(201) 257-6850 (212) 840-9494 (215) 563-5587 (202) 783-7288

QUESTIONS PRESENTED

Did the petitioner herein, a tenant tn a

multi-family dwelling, have a constitutional ly

protected, reasonable expectation of privacy with

respect to a two foot wide ledge which traversed

the area outside of the windows of his second

floor apartment?

Does the concept of curtilage have any

applicability to multi-family dwellings; or

should the apartment dweller have a diminished

expectation of privacy as compared to the home

owner ?

f%

"i

TABLE OF CONTENTS

Page

Table of Authorities................. ii

sntroductory Statement ...)..;.....5... 2

Opigiona Belew)... 63505 ee wee 2

Questions: Presented .. 2.5053... 2

Statement of the Case 2.65605 oc cctdue. 3

Reasons for Granting the Writ ........ 9

SOMERTON ais s bs Soa or kek eh ee 15

Appendix A - Opinion of Court of Al

Appeals

Appendix B - Decision Denying Re- Bl

Yearing

TABLE OF AUTHORITIES

Pages

Coolidge v. New Hamoshire, 403

TS uns : ,466 C1971) 8

Fixel v. Wainwright, 492 F.2d

480 (Sth Cir. TOF) | 13

Payton v. New York om

48 U.S. L.W. B375 (1920) pe BE &

Rakas v. Illinois, 439 U 8. 128

(1978) 6,12

State v. Alexander, 170 N.J. Super.

298 (Law Div. 19/9), aff'd, 173 N.J.

Super. 260 (App. Div. 19890) 9

United States v. Anderson, 552

H th Cir. L977) 13

United States v. Cruz Pagan, 537

; (lst 7. ) 10

United States v. Penco, 612 F.2d

: n r. 1979) 10

United States v. Santana, 427

S # )

SF

IN THE

SUPREME COURT OF THE UNITED STATES

OSCAR ARBOLEDA,

Petitioner,

- against -

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

INTRODUCTORY STATEMENT

OSCAR ARBOLEDA, petitioner, prays that

a writ of certiorari issue to review the judg-

ment of the United States Court of Appeals for

the Second Circuit made final in this case on

October 8, 1980.

OPINIONS BELOW

The opinion of the Court of Appeals for

the Second Circuit was rendered on June 9, 1980

and has not yet been reported (Appendix A, infra).

On October 8, 1980, an opinion and order denying

re-hearing and an order denying en banc consider-

ation were entered. The decision denying re-hear-

ing is set out as Appendix B, infra.

QUESTIONS PRESENTED

Did the petitioner herein a tenant in a

multi-family dwelling, have a constitutionally pro-

tected, reasonable expectation of privacy with

respect to a two foot wide ledge which tra-

versed the area outside of the windows of his

second floor apartment?

Does the concept of curtilage have

any applicability to multi-family dwellings; or

should the apartment dweller have a diminished

expectation of privacy as compared to the home

owner?

STATEMENT

On the evening of April 9, 1979 three

New York City Police Officers went to petitioner's

apartment in the County of Queens, City of New

York for the purpose of "possibly" apprehending

petitioner's brother on charges unconnected to the

instant matter, and to interview the petitioner.

The officers had no warrants, for the arrest of

petitioner, his brother, or to search the premises.

No testimony was elicited to establish the presence

of either exigent circumstances or probable cause

ae

to arrest petitioner or his brother.

Two of the officers stationed themselves

outside of petitioner's apartment door, listen-

ing for what could be overheard. The third of-

ficer went up to an apartment on the sixth floor

and, with the occupants’ consent, went through

the apartment,out of a window and on to an out-

side fire escape. The officer descended the fire

escape until he reached the floor upon which petit-

ioner's apartment was located. Ie then climbed

over a three foot high railing on the fire escape

and sidled along a two-foot wide ledge, past the

windows of petitioner's apartment, peering into:

the windows as he passed. His claimed purpose

for positioning himself on the ledge was to pre-

vent the possible escape of petitioner's brother.

At a prearranged time and pursuant to plan,

the officers who remained stationed outside the

petitioner's door began to pound upon it while

announcing themselves as police officers. From

4.

his vantage point on the ledge, the third

police officer saw petitioner open a window

and toss a package onto. the ledge. The vol-

ice officer made his way back along the ledge,

retrieved the package, opened it and saw white

powder; he then broke through the window, and

placed petitioner under arrest.

Petitioner was subsequently brought

to trial in the United States District Court

for the Eastern District of New York on the

charge of possession of a controlled substance

with intent to distribute it in violation of 21

U.S.C. §841. The contents of the package retriev-

ed by the police officer formed the basis of this

prosecution. His motion to suppress was denied

and petitioner was convicted after jury trial.

On appeal to the Second Circuit, the

judgment of conviction was affirmed by a two to

one vote. The majority opinion held that the

petitioner had not prover that the police of-

a.

ficers did noc have an arrest warrant for

petitioner's brother and therefore, could not

premise his argument on the fact that the in

trusion was “warrantless”. As a second ion

independent ground for affirmance, the major-

ity held that petitioner "had no legitimate

expectation of privacy in the ledge." Bas-

ing its opinion on the factors held by this

Court to be controlling in Rakas v. Illinois,

439 U.S. 128 (1978) (a case which involved

the search of an automobile, not a home) the

majority opinion concluded that even though

the action of the police officer in peering

into the apartment was “impermissible peeping -

Tom activity", the petitioner had no Fourth

Amendment protection vis-a-vis the ledge.

Circuit Court Judge Oakes dissented

from both portions of the majority opinion.

He opined that the fact that the ledge was

not a passageway distinguished it from pub-

lic areas such as a hall, stairwell or garage.

Judge Oakes concluded that "when Bisbee

climbed over the fence from the fire escape

on to the ledge, he intruded in an area in °

which Arboleda had a reasonable expectation

of privacy." (A. 27 ).

On a petition for re-hearing, the

judges who constituted the majority withdrew

Part I of their opinion, and decided "to rest

our decision on the adequate and independent

ground developed in Part II of the opinion."

ap i

Circuit Judge Oakes again dissented,

summarizing his views as follows:

"As for the alternative ground

that Arboleda abandoned any rea-

sonable expectation of privacy

when he tossed the package onto

the two foot ledge outside of

his apartment - think the sub-

ject is adequately covered in

the original dissenting opinion.

The fact that the package, at

least according to the detective,

hit the fire escape before it

came to rest on the ledge is

wholly immaterial. The case is

not one involving a package be-

ing thrown onto an area to which

there was no expectation of

privacy. If my back yard

is enclosed by a fence that

shields it from any alleyway

and I throw an object against

the fence that remains in the

yard, I do not think that any

officer who happens to come down

the alleyway at the time I throw

‘the object and even sees me throw

it has a right to climb the fence

to determine what that object is.

See Coolidge v. New Hampshire,

403 0-S- 03, 466 CITT

REASONS FOR GRANTING THE WRIT

The issue presented by this case has not

been previously considered by this Court. Yet

the scope of the area in which apartment dwel-

lers are entitled to privacy is of vital im-

portance to the millions of persons in this

country who live in multi-family dwellings, and

to the law enforcement officers who work in

urban areas.

There have, in the past few years, been

more and more cases addressing the question of

the legality of police officers' intrusions in-

to milti-family dwellings and particularly

on to fire escapes, in order to obtain evidence,

with disparate results. See State v. Alexander,

170 N.J. Super. 298 (Law Div. 1979), aff'd, 173 N.J.

Super.260 (App.Div.1980) and cases cited therein.

The trend of the decisions has been toward

a narrowing of the scope of the area in which

apartment dwellers enjoy a legitimate expecta-

tion of privacy. Irrespective of whether

9.

the law enforcement officers are legally

upon premises, the courts have held that

“well travelled common areas" United States

v. Cruz Pagan, 537 F.2d 554, 558(1lst Cir. 1976),

such as the "stairwell, garage and other

public areas" United States v. Penco, 612

F.2d 19,24 (2d Cir. 1979) of a multi-family

dwelling are not areas in which an apartment

dweller can reasonably expect privacy.

This case presents a striking and

further limitation upon those areas in which

the apartment dweller may reasonably expect

to be unmolested, absent judicial sanction.

Here, police officers went to a private

dwelling at night, without any warrant, to

arrest someone who did not live there, with-

out any showing of probable cause to arrest

or to even believe that the man sought to

be arrested could be found upon the premises.

Under these circumstances, the Second Circuit

10.

—

allowed officers to literally surround the

apartment by stationing themselves both at

the apartment's door and upon a two foot

wide decorative ledge that protruded from

the building along the windows of the petition-

er's second floor apartment.

Noting that the Supreme Court's deci-

sions in Payton v. New York, i

48 U.S. L.W. 4375(1980) and United States v.

Santana, 427 U.S. 38 (1976) identified the

line at which the requirement for an arrest

warrant takes hold as “the entrance to the

house" and the "threshold", the Second Cir-

cuit in this case found that "it was doubt-

ful that the curtilage concept had mich appli-

cability to multi-family dwellings." (A.14).

Since other tenants of the building

could conceivably climb out of their win-

dows or make their way from the fire escape

ll.

onto this two foot wide horizontal molding

on the building's exterior which extended

past the windows of the petitioner's apart-

ment, the Court reasoned that petitioner did

not exercise exclusive control over this ledge,

and therefore had no legitimate expectation

of privacy with respect to it. In so doing,

the Second Circuit relied upon those fact-

ors which this Court, in Rakas, decided were

relevant to a determination of whether a

person had a reasonable expectation of pri-

vacy in and to an automobile.

This Court in Payton held that, ab-

sent exigent circumstances, the threshold

of the’ home may not reasonably be crossed

without a warrant. Furthermore, in Payton,

this Court re-affirmed the unique and ex-

alted position of a home with respect to

Fourth Amendment protection. Is the owner

of a home entitled to more protection than

12.

an apartment dweller? Should the concept of

privacy when applied to the apartment dweller

be so emasculated as to equate an apartment

to an automobile?

Both the Eighth Circuit in United

States v. Anderson, 552 F.2d 1296 (8th Cir.

1977) and the Fifth Circuit in Fixel v. Wain-

wright, 492 F.2d 480(5th Cir. 1974) have re-

affirmed the traditional concept of curtilage

and held that the Fourth Amendment protection

against invasion of privacy extends to private

property immediately adjacent, surrounding

and closely related to a dwelling. The Second

Circuit has denied the applicability of the

curtilage concept to the multi-family dwelling,

and has found no Fourth Amendment invasion of

privacy when the police come upon and make ob-

sexvations at night from ledges which are clear-

ly not public passageways and which are immediate-

13.

ly adjacent, surrounding and closely related

to the windows of a second floor apartment.

The Second Circuit clearly erred

when it applied the standards relevant to deter-

mination of whether one had a reasonable ex-

pectation of privacy in an automobile to the

determination with respect to a home. This

Case presents the opportunity for this Court

to consider this question which is of vital

importance to millions of Americans, and to

decide whether the police may perch at night

on a ledge above street level, outside an

apartment, without a warrant, or whether

the apartment dweller is entitled to protect-

ion from governmental intrusion into this

area.

14.

CONCLUSION

For the foregoing reasons, a writ

of certiorari should issue to the United

States Court of Appeals for the Second Cir-

cuit to review the judgment of that Court.

Dated: November 4, 1980

New York, New York

Respectfully submitted,

IRA LEITEL, ESQ.

Attorney for Petitioner

Office & P.O. Address

2 Lafayette Street

New York, New York 10007

(212) 227-0030

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

>

No. 528—September Term 1979

(Argued: December 11, 1979 Decided June 9, 1980)

Docket No. 79-1278

—~+>—_

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

_—Vi—

OSCAR ARBOLEDA,

Defendant-Appellant.

Before:

FRIENDLY, MULLIGAN and OAKES,

Circuit Judges.

ee

Appeal from a judgment of the District Court for the

Eastern District of New York, Thomas C. Platt, Jr.,

Judge, convicting defendant, after a jury trial, under an

indictment charging one count of criminal possession of

94 grams of a controlled substance with intent to

distribute, in violation of 21 U.S.C. §841, on the

3397

7:

ground that the court erred in denying a suppression

motion. Affirmed.*

——

HARVEY J. GOLUBOCK, Assistant United

States Attorney, Eastern District of

New York (Edward R. Korman, United

States Attorney, Eastern District of

New York, Miles M. Tepper, Assistant

United States Attorney, Of Counsel),

for Plaintiff-Appellee.

IRA LEITEL, Esq., New York, N.Y. (Carol

Mellor, Esq., Of Counsel), for Defen-

dant-Appellant.

>

FRIENDLY, Circuit Judge:

This appeal is from a judgment of the District Court

for the Eastern District of New York, Thomas C. Platt,

Jr., Judge, convicting defendant, after a jury trial,

under an indictment charging one count of criminal

possession of 94 grams of a controlled substance with

intent to distribute, in violation of 21 U.S.C. § 841. The

sole ground urged for reversal is the court’s refusal to

suppress the evidence seized and the statements made

bs: This appeal was argued before Judges Mulligan, Oakes and

Gurfein on December 11, 1979. Although before his death on

December 16, 1979, Judge Gurfein had voted, along with Judge

Mulligan, to affirm the conviction, their grounds were not identical.

Chief Judge Kaufman then designated the writer to sit with Judges

Mulligan and Oakes and decide the appeal, pursuant to Rules of the

United States Court of Appeals for the Second Circuit, § 0.14(b). In

addition to studying the record and briefs the writer has listened to a

tape recording of the oral argument.

3398

A-2

by the defendant at the time of his arrest in his

apartment at 51-55 Van Kleck Avenue, Elmhurst,

Queens, New York.

The circumstances surrounding the arrest of Arboleda

and the seizure of the highly damaging evidence were

elicited at a pre-trial suppression hearing. Three

witnesses testified: two of the police officers who were

present on the scene, and the defendant. The trial judge

said that he found “much, if not all, of the defendant’s

testimony to be incredible and credits fully the

sstimony of Detective Bisbee.”

The facts developed at the hearing were as follows:

On the evening of April 9, 1979, New York City

Detective Bisbee, assigned to the Drug Enforcement

Task Force, went to the Van Kleck Avenue apartment,

along with Officer Flores and Group Supervisor and

Investigator Gross of the New York City Police

Department, for the purpose of apprehending

defendant’s brother, Gilberto Arboleda, who was

wanted in connection with narcotics-related homicides,

and also to interview the defendant. Officers Gross and

Flores stationed themselves outside the front door of

Apartment 3 H, listened in order to ascertain whether

anyone was inside, and heard some movement and the

noise of a TV. Bisbee arranged that at a set time the

officers should knock on the door and announce

themselves as police. He ascended to an apartment on

an upper floor and with the occupant’s consent went

through it to a window that gave access to the fire

escape. He descended this to the floor on which

defendant’s apartment was located,’ climbed over the

1 Despite the designation 3 H the clear testimony of Detective

Bisbee was that the apartment was on the second floor.

3399

fence of the fire escape to a two-foot ledge and made

his way along it, with the purpose of preventing “the

possible escape of Gilberto Arboleda whom we believed

may have been in the apartment.” Bisbee testified that

he glanced into the windows of the apartment as he

proceeded, but that he could not see into it because the

blinds were drawn. The kitchen window blinds were

“maybe halfway up”; Bisbee’s glance only permitted

him to make out that the room was a kitchen. The trial

court found that at the prearranged time of the signal

Bisbee heard a banging noise.? The court described

what then happened as follows:

The defendant came to the kitchen window of his

apartment. The window opened and the defendant

looked out, tossed an aluminum foil package out

the window towards the underneath part of the

fire escape, looked around and quickly slammed the

window and began locking it. Detective Bisbee ran

over, grabbed the package from the fire escape,

looked inside and saw a plastic bag filled with

white powder which in his opinion appeared to be

cocaine. Thereupon he banged on the window, held

up his badge and the package and said “Police,

open the window.” (Tr. 9).

The defendant (who now claims to speak no

' English) replied by holding up a single finger and

saying “Wait one minute” and “With that he ran

away from the window.” (Tr. 11) and then made a

left hand turn (Tr. 12).

Detective Bisbee then smashed the window,

opened it, jumped through the opened window and

2 Officer Flores denied that he or Officer Gross had yet banged.

3400

A-4

ran in the direction the defendant had run, and

saw that the bathroom door was closed. He heard a

toilet being flushed and he kicked open the closed

bathroom door. Inside Detective Bisbee found

Oscar Arboleda and the defendant then took

ancther package of clear plastic containing white

powder, molded into a pair of dungarees, folded it

and dropped it on the ground. (Tr. 13).

Detective Bisbee advised him he was under arrest

whereupon the defendant began struggling with

him and continued to struggle with him all the way

into the living room. Detective Bisbee finally

managed to get one handcuff on the defendant,

pulled him over to the door and opened it to admit

the other officers who were waiting outside. The

officers went through the apartment checking each

room, looking for Arboleda’s brother or anyone else

who might be there. During this investigation,

Detective Bisbee recovered the second package of

cocaine from the bathroom. Thereafter, in Detec-

tive Bisbee’s presence, Officer Flores warned the

defendant of his rights, in Spanish.

During the course of the aforedescribed events,

Detective Bisbee heard New York City Police

Officers who had apparently been called to the

scene by other people “Yelling outside”. Detective

Bisbee went back into the kitchen and from the

kitchen window informed the police officers

outside that there were police officers already in

the premises. It was at this time that he observed a

Hamilton Scale on the sink, a package of zip lock

bags and four stringers hanging at the end of the

sink.

3401

A-5

I,

In the district court Arbodela, then represented by

different counsel, focused his attack on Bisbee’s

breaking the window, entering the apartment and

arresting Arboleda without a warrant, allegedly in

violation of United States v. Reed, 572 F.2d 412 (2

Cir.), cert. denied, 439 U.S. 913 (1978), now reinforced

by Payton v. New York, 48 L.W. 4375 (1980). Arboleda

testified at the suppression hearing that he did not lean

out the window or toss a package along the ledge, as

the district court permissibly found, but that Bisbee

simply broke in through the window. On appeal counsel

focused not on Bisbee’s entry through the window or

arrest of Arboleda without’a warrant, but rather on his

entry onto the ledge. Counsel conceded that if Bisbee’s

seizure of the plastic bag, reasonably believed to

contain cocaine, was lawful, which he stoutly denied,

the breaking of the window and the subsequent entry,

search and arrest were unobjectionable. These actions

clearly came within the “exigent circumstances” excep-

tion recognized in Reed, id. at 418, 424. He conceded

also that if the officers were armed with an arrest

warrant for Gilberto Arboleda, his appeal should be

dismissed, presumably because on that assumption

Bisbee would have been justified in placing himself on

the ledge to prevent Gilberto’s escape,‘ see United

3 No contention has been made that if the entry and arrest were

valid, the recovery of the second package of cocaine and the

narcotics paraphernalia without obtaining a search warrant violated

Chimel v. California, 395 U.S. 752 (1969).

4 Counsel did argue that Bisbee would have been better advised to

remain on the fire escape since placing himself on the ledge risked a

struggle in which he might have fallen to the ground. Bisbee could

have thought it necessary to take this risk since otherwise Gilberto

might have jumped to the street. In any evert Bisbee’s choice of

3402

A-6

States v. Anderson, 552 F.2d 1296, 1300 (8 Cir. 1977),

and the seizure of the first package would be valid

under the plain view doctrine, Coolidge v. New

Hampshire, 403 U.S. 443, 451 et seq. (1971), since the

circumstances were exigent and the discovery inadver-

tent. His argument is that there was no such warrant

and that without one, while Bisbee may have had a

right to station himself on the fire escape, a “public

area” of the building within our decisions in United

States v. Llanes, 398 F.2d 880 (1968), cert. denied, 393

U.S. 1032 (1969), and United States v. Penco, 612 F.2d

19 (1979), he committed an unlawful intrusion when he

left the fire escape for the ledge and that any fruits of

this action are thus suppressible. Cf. Coolidge v. New

Hampshire, supra, 403 U.S. at 465-66.

The argument encounters the serious difficulty that

the record is barren of any evidence that none of the

officers had an arrest warrant. “It is well established

that the burden of production and persuasion generally

rest upon the movant in a suppression hearing.” United

States v. De La Fuente, 548 F.2d 528, 533 (5 Cir.), cert.

denied, 431 U.S. 932, 434 U.S. 954 (1977). See United

States v. Morin, 378 F.2d 472, 475 (2 Cir. 1967); ef.

United States v. Masterson, 383 F.2d 610, 614 (2 Cir.

1967), cert. denied, 390 U.S. 954 (1968) (F.R.Cr.P.

41(e)). The movant can shift the burden of persuasion to

the Government and require it to justify its search,

however, when the search was conducted without a

warrant. United States v. Mapp, 476 F.2d 67, 76 (2 Cir.

1973). Although there was no search warrant for

more dangerous tactics would violate no constitutional right of

appellant if he was acting to prevent Gilberto’s escaping from what

would have been a valid arrest.

3403

Arboleda’s apartment, the police officers were going to

the apartment to arrest Gilberto, and if they had an

arrest warrant for Gilberto this would have the same

legal effect as a search warrant in justifying entry into

Arboleda’s home to effect the arrest. See e.g., United

States v. Cravero, 545 F.2d 406, 421 (5 Cir. 1976) (on

petition for rehearing), cert. denied, 429 U.S. 1100, 430

U.S. 983 (1977); United States v. McKinney, 379 F.2d

259, 263 (6 Cir. 1967) (McCree, J.).° Arboleda cannot,

therefore, rely on the lack of a search warrant to shift

the burden to the Government.

The movant must at least question the existence of a

warrant before the Government is compelled to produce

it. In United States v. De La Fuente, supra, 548 F.2d at

533, the court stated that:

[In some well-defined situations the ultimate

burden of persuasion may shift to the government

upon an initial showing of certain facts by the

defendant. For example, if a defendant produces

evidence some well-defined situations the ultimate

5 This Circuit appears not to have squarely held that an arrest

warrant permits entry into the residence of a third person to effect

the arrest. The issue was presented in United States v. Hammond,

585 F.2d 26, 28 (2 Cir. 1978), but the court did not reach it because

counsel conceded the point. Judge Meskili noted that counsel's

concession appeared to be “in accord with hints by the Supreme

Court that, at least in some circumstances, an arrest warrant may be

all that is required for law enforcement officers to enter a private

residence, or to search that residence, for purposes of arresting the

subject of the warrant.” Jd. at n.1 (citing numerous cases). A more

recent “hint” along the same lines was provided by Justice Powell in

Dalia v. United States, 441 U.S. 238, 257-58 (1979) (citing Cravero,

supra). In any event, counsel, whose objection on appeal is Bisbee's

entry onto the ledge, conceded that the appeal should be dismissed if

there was an arrest warrant for Gilberto. The only reason fcr this

concession would be recognition that such a warrant would authorize

the entry onto the ledge.

3404

burden of persuasion may shift to the government

upon an-initial showing of certain facts by the

defendant. For example, if a defendant produces

evidence that he was arrested or subjected to a

search without a warrant, the burden shifts to the

government to justify the warrantless arrest or

search. (emphasis supplied).

See also United States v. Warren, 578 F.2d 1058, 1067

& n.6 (5 Cir. 1978) (en banc) (“it is incumbent upon the

party moving to suppress evidence to demonstrate lack

of authority for its acquisition”). Cf. United States v.

Diezel, 608 F.2d 204, 207 (5 Cir. 1979) (voluntariness

of confession). Arboleda did not make the showing

necessary to call upon the Government to adduce

evidence of a warrant for Gilberto’s arrest which, as he

concedes, would justify Bisbee’s presence on the ledge

and the subsequent arrest of Arboleda and search of the

apartment.

The rule requiring a movant at least to make an

initial demonstration of lack of authority is sound both

in logic and in fairness. As noted, the general rule is

that the burden is on the movant, and so the movant

must take some action, such as questioning the

existence of a warrant, before the burden shifts to the

Government. Further, there is a presumption of

regularity of official action which the movant must do

something to unseat. See United States v. Mangan, 575

F.2d 32, 41 (2 Cir.), cert. denied, 439 U.S. 931 (1978);

United States v. Warrington, 17 F.R.D. 25, 29 (N.D.

Cal. 1955). It would have been simple for defense cousel

to have asked Bisbee or Flores, who also testified at the

suppression hearing, whether or not they had an arrest

warrant for Gilberto. It is true that it would have been

3405

A-10

equally simple for the Government to have asked, but

there was no occasion for its doing so since in the

district court defendant made no point of the illegality

of the projected entry through the door or the

contemplated arrest of Gilberto. Arboleda did nothing

below to suggest to the Government that the existence

of a warrant for the arrest of Gilberto would be called

into question, even though Arboleda knew that the

~ officers explained their coming to the apartment and

; the stationing of Bisbee on the ledge on the basis of the

effort to arrest Gilberto. “Appellant should not profit

from his own failure to develop a proper record.”

Mangan, supra, 575 F.2d at 41.

The dissent suggests that we should relieve the

appellant of the consequences of this failure because it

is somehow “unfair” to expect him to question the

existence of a warrant for the arrest of a third party.

This ignores the facts of the case. The role of the

contemplated arrest of Gilberto in this scenario did not

suddenly emerge out of the blue. Arboleda knew that

Bisbee was positioned on the ledge pursuant to the

endeavor to arrest Gilberto, and it was open to him

below to question the officers about this effort by, for

example, asking if they had a warrant and inquiring

4 into the basis for their belief that Gilberto was in the

apartment. The paucity of record evidence on these

points is not due to defendant’s inability to anticipate

them, but rather is caused by the fact that pitting his

own version of the facts against that of the officers as

to what occurred on the ledge, he did not question them

in any way. If, as the dissent suggests, there is

anything “Kafkaesque” about this case it is the

complete “metamorphosis” in appellant’s legal argu-

ment between trial and appeal—a change so great as to

3406

make it questionable whether Arboleda should even be

heard on the contention with respect to the illegality of

Bisbee’s presence on the ledge that is now mainly

pressed.®

6

What has just been said largely disposes of another argument

made in the dissent, namely, that even an arrest warrant would not

justify an entry unless the officers reasonably believed that Gilberto

was within the apartment. Since Arboleda did not question the

existence of a warrant, there was no occasion for the Government to

develop the justification for its issuance or execution. Moreover,

there was uncontradicted evidence that the officers in fact believed

that Gilberto was within the apartment and considerable evidence

that the belief was reasonable. Bisbee testified that the officers were

led to the apartment by information gained while making other

arrests, and that they knew Gilberto stayed with his brother “in the

area of a month at a time or, possibly, months at a time.” The

officers verified their belief by checking with the building

superintendent prior to going to apartment 3 H. The superintendent

told them that two Colombians lived in the apartment and that they

were in the apartment at that time. The lack of findings of

reasonable belief that Gilberto was in the apartment, as in the case

of the warrant itself, is due to the fact that the issue was not raised

in the district court. Beyond all this, counsel for Arboleda conceded

at argument that if there was an arrest warrant, this appeal should

be dismissed.

Again, apart from the concession, the dissent’s further argument,

fn. 3, that the officers were required to announce their presence and

purpose prior to entering the ledge as opposed to the apartment is

unpersuasive, even assuming the ledge was a protected area. See 2

LaFave, Search and Seizure 128 (1978) (“Historically, the notice

requirement has been applied only to dwellings and other buildings

within the curtilage . . . .”). The rule proposed in the dissent would

require officers entering the yard of a home on their way to making

an entry to shout their presence and purpose from the gate rather

than after walking up to the door. United States v. Fluker, 543 F.2d

709, 716 (9 Cir. 1976), relied on by the dissent, is hardly in point.

The officers there entered what the court considered part of a

dwelling area by breaking down the door. Here there was no entry

into a dwelling or comparable area but simply onto an exposed ledge

which, while obviously part of the building, was not part of the

apartment.

3407

A-11

IT.

While this is a sufficient basis for affirmance, there is

another. In Rakas v. Illinois, 439 U.S. 128 (1978), the

Court said that “capacity to claim the protection of the

Fourth Amendment depends not upon a property right

in the invaded place but upon whether the person who

claims the protection of the Amendment has a

legitimate expectation of privacy in the invaded place.”

Id. at 143. See also Katz v. United States, 389 USS.

347, 351; 361 (Harlan, J., concurring) (1967). Clearly

Arboleda had such an expectation with respect to

objects within his apartment but Bisbee’s impermissible

peeping-Tom activity produced nothing that led to the

subsequent arrest and seizures. In contrast Arboleda

had no legitimate expectation of privacy with respect to

an object which he threw outside the apartment with

the objective of getting rid of it before it could be seized

by the officers whose presence at the door he had

apparently detected.

The district judge stated that Bisbee grabbed the

package “from the fire escape.” The fire escape was a

common area where Bisbee could lawfully have been

whether or not there was an arrest warrant. If

Arboleda tossed the contraband onto it, he can claim no

violation of his rights. Although Arboleda may have

intended to retrieve the package later, by placing it in

an unprotected area he had abandoned it for Fourth

Amendment purposes. See United States v. Lewis, 227

F.Supp. 433 (S.D.N.Y. 1964). Arboleda’s action was

precipitated by the perfectly legal knock of the officers

at the door, and not by anything which Bisbee did,

authorized or not.

Bisbee’s testimony, however, suggests that the

package fell short of the area where the fire escape

3408

A-12

A-13

hangs over the ledge and came to rest on the ledge

itself. This makes no difference, since Arboleda had no

legitimate expectation of privacy in the ledge.

Rakas provides considerable guidance on assessing

whether there exists a legitimate expectation of privacy

in any particular case. The Court noted that one may

have a legitimate expectation of privacy “by virtue of

[the] right to exclude.” 439 U.S. at 143-44 n.12. There

is no evidence that Arboleda exercised any exclusive

control over the ledge, which ran along the front of the

building and was accessible to other tenants from their

windows and the fire escape.” Another relevant factor

in considering what constituted a legitimate expecta-

tion of privacy is “the way a person has used a

location.” 439 U.S. at 153 (Powell, J., concurring); id. at

141, 149. Here there was no indication that Arboleda

had ever used the ledge in a private manner or as a part

of his home. A third factor is whether the defendant

“took normal precautions to maintain his privacy.” 439

U.S. at 152 (Powell, J., concurring). Again, there is no

evidence that Arboleda took any such precaution with

respect to the ledge; indeed, the record demonstrates

that the exigent circumstances in which Arboleda found

himself when the officers knocked left no time for

precautions.

7 The dissent asserts that there is no record evidence that other

tenants could gain access to the ledge from their windows, but

Bisbee testified that the ledge “runs right along the whole width of

Apartment 3 H and I believe it goes further than that, to the next

apartment.” Bisbee drew a sketch at the suppression hearing which

indicated the ledge extending beyond apartment 3 H. In any event, it

is clear that there was access from the fire escape and, even though

the ledge may not have been used as a passageway, this freedom of

access negates any contention that Arboleda exercised exclusive

control over the area.

3409

It is difficult to imagine a legitimate expectation of

privacy in an open area running along the front of the

second floor of a building over a street. Bisbee was

apparently observed on the ledge by someone who

called the police to report a burglary; later Bisbee spoke

through the kitchen window over the ledge to police on

the street below. Cf. United States v. Santana, 427 US.

38, 42 (1976). Although Arboleda complains in his

reply brief that it is “quite conceivable” that there may

have been obstructions to observation from the street,

such speculation hardly suffices to discharge his burden

of establishing a legitimate expectation of privacy. See

Rakas, supra, 439 U.S. at 130-31 n.1.

Arboleda likewise is not helped by invocation of the

hoary concept of “curtilage”. Terming a particular area

curtilage expresses a conclusion; it does not advance

Fourth Amendment analysis. The relevant question is

the one surveyed above, whether the defendant has a

legitimate expectation of privacy in the area. See

Wattenberg v. United States, 388 F.2d 853, 858 (9 Cir.

1968). It seems decidedly questionable whether, under

the Rakas analysis, a homeowner could insist upon a

search warrant if he hurled a package of cocaine onto

his front lawn where it could be plainly seen by anycue.

In its recent decision in Payton v. New York, supra, 48

L.W. at 4380, the Supreme Court identified the line at

which the requirement for an arrest warrant takes hold

as “the entrance to the house” and the “threshold”. See

also United States v. Santana, supra, 427 U.S. at 42

(vestibule behind open door in public place). In any

event, it is doubtful that the curtilage concept has

much applicability to multifamily dwellings such as the

one involved here. As the Court stated in Common-

wealth v. Thomas, 358 Mass. 771, 267 N.E.2d 489, 491

(1971):

3410

A-14

In a modern urban multifamily apartment house,

the area within the “curtilage” is necessarily much

more limited than in the case of a rural dwelling

subject to one owner’s control . . . . In such an

apartment housee, a tenant’s “dwelling” cannot

reasonably be said to extend beyond his own

apartment and perhaps any separate areas subject

to his exclusive control.

See also United States v. Agapito, slip ops. 1681, 1693-

94 & n.9 (2 Cir., March 12, 1980).

Finally, any distinction between the ledge and the

fire escape for Fourth Amendment purposes would be

irrational. The fire excape projects over the ledge and

runs along it, a small space above. As noted, it is a

common area of the building, and thus no particular

tenant can claim Fourth Amendment protection in it.

Arboleda was not trying to hide the package on the

portion of the ledge immediately adjacent to his

apartment; Bisbee testified that Arboleda “directed” the

package toward the fire escape but that it “hit the bar

from the fire escape and rested there on the ledge.” It is

difficult to see why, under these circumstances, the

ledge, which is readily observable from the fire escape

and even runs under it in areas, should have a

constitutionally different status than the fire escape

itself.

Since the seizure of the package of cocaine was lawful

both for the reason stated in Part I and for that stated

in Part II of this opinion, the judgment of conviction is

affirmed.

>

3411

A-15

OAKES, Circuit Judge (dissenting):

The majority opinion holds first that a suppression

movant must raise the issue whether officers who

arrested him in his home had a warrant for a third

person who was not found in the home. Apparently

unsatisfied with a record that could have been cured to

the majority’s satisfaction by the asking of one simple

question of Detective Bisbee,’ the majority then goes on

to hold, alternatively or cumulatively, that Arboleda

“had no legitimate expectation of privacy with respect

to an object which he threw outside the apartment with

the intention of getting rid of it.” Because I disagree

with each of these conclusions, I must dissent.

The majority’s first argument, condemning appellant

because he failed to ask whether the officers had an

arrest warrant for Gilberto Arboleda, constitutes a

novel and unjustifiable procedural ruling. It apparently

contains an implied substantive holding that is also

unprecedented. It is conceded that, in the district court,

appellant “focused his attack on Bisbee’s breaking the

window, entering the apartment and arresting Arboleda

without a warrant.” Majority op. at ____ (emphasis

added). The record below and the briefs on appeal make

it equally clear that the Government and the district

court consistently viewed this as a case involving a

warrantless (but justifiable) entry and arrest. The

district court’s order denying suppression, for example,

discussed two questions almost exclusively: (1) the

propriety of Bisbee’s “intrusion” onto the ledge where

the initial plain view took place, under the warrantless

entry case of United States v. Anderson, 552 F.2d 1296

1 The question would be “Do you claim you were on the ledge by

virtue of any warrant to arrest or search?”

3412

A-16

(8th Cir. 1977) (see note 6 infra), and (2) the propriety

of the subsequent warrantless entry through the

window, on grounds of exigent circumstances.

In sum, the procedural holding of this case appears

to be that a defendant in a suppression hearing, even

after establishing clearly that he was arrested in his

home and that there was no arrest warrant for him or

search warrant for the premises, has a further burden

of asking whether the arresting officers had an arrest

warrant for any third party. On appeal, even if the

district court and both parties have treated the case as

one involving no warrants, the majority is apparently

willing to affirm an otherwise illegal conviction because

this question was not asked. This seems to me almost

Kafkaesque. This rule would be less unfair if it were in

line with general principles of burden of proof in

suppression motions, but it is not.

It may be true as a general rule that the moving

party in a suppression hearing has the burden of

production and persuasion, as the case so relied upon by

the majority points out. United States v. De La Fuente,

548 F.2d 528, 533 (5th Cir.), cert. denied, 431 U.S. 932,

434 U.S. 954 (1977). But when a defendant has

produced sufficient evidence that he was arrested or

subjected to a search without a warrant, the federal

rule is that the burden shifts to the government to

justify the warrantless arrest or search. Id.; Manuel v.

United States, 355 F.2d 344 (5th Cir. 1966). Here

appellant did produce such evidence and one would

have thought that the burden then shifted to the

government. Yet the court holds him to an additional

burden—to ask whether the police were on his premises

with a warrant for his brother’s arrest. This is a burden

that no case cited by the majority requires.

3413

A-17

The burden-shifting in suppression hearings is clearly

premised on a recognition of what it is fair to expect

each party to prove. As Professor LaFave has stated:

if the search has been conducted incident to a

warrant of arrest or search, and the defendant

claims that the warrant was issued on less than

probable cause, he has the burden of proving this

allegation. This position may be based in part upon

the “presumptions of regularity which attend the

action” of the judicial officer issuing the warrant,

but is better explained on the basis that it is in no

way unfair to place the burden on the defendant

when the government has already set forth in the

complaint or affidavit the grounds upon which it

rests the legality of its action. But, when the police

have acted without a warrant, “it would be

impossible for a defendant to prove a lack of

probable cause in the abstract. The defendant

cannot be expected to prove a lack of some item

until he knows on what the government bases its

claim of existence.” Thus, the federal courts have

placed the burden on the government in such cases.

LaFave, Search and Seizure: “The Course of True Law

. . . Has Not... Run Smooth,” 1966 U. Ill. L.F. 255,

347-48 (citations omitted). It seems only fair to treat a

third-party warrant as one of the many possible

defenses that the Government can raise once the

defendant has made his normal prima facie showing of

an arrest without a warrant for him or an entry

without a warrant to search his premises. Why must

the defendant, at his peril, anticipate such a justifica-

tion? To be sure, under the majority’s rule, the

defendant need only “suggest,” not “prove” the absence

3414

A-18

of an arrest warrant for someone else. But it is

fundamentally unfair to require either action. .

The unfairness is made worse here because of the

implied Fourth Amendmert substantive holding in the

majority opinion. The majority apparently concludes

that a warrant of arrest for T will permit the entry of

D’s apartment/home absent both probable cause and

exigent circumstances. The opinion states:

Although there was no search warrant for

Arboleda’s apartment, the police officers were

going to the apartment to arrest Gilberto, and if

they had an arrest warrant for Gilberto this would

have the same legal effect as a search warrant in

justifying entry into Arboleda’s home to effect the

arrest. See e.g., United States v. Cravero, 545 F.2d

406, 421 (5 Cir. 1976) (on petition for rehearing),

cert. denied, 429 U.S. 1100, 430 U.S. 983 (1977);

United States v. McKinney, 379 F.2d 259, 263 (6

Cir. 1967) (McCree, J.).

Majority op. at ___. However, every recent case in this

area, including those cited by the majority, has required

at least a showing of “reasonable belief” that the third

party was actually in the premises entered. Thus, in its

reliance on a presumption of a third-party warrant that

was not even suggested by the Government, the

majority is either adopting a new rule of total police

discretion in this area or depriving appellant of an

opportunity to show that the officers had no reasonable

grounds for suspecting that his brother was in the

apartment that night.

The reasonable-belief requirement, as enunciated in

numerous cases, is not a mere formality that is easily

satisfied. See United States v. Harper, 550 F.2d 610,

3415

A-19

611, 613 (10th Cir.), cert. denied, 434 U.S. 837 (1977)

(reliable informant placing suspect at that address that

same day); United States v. Cravero, 545 F.2d 406, 421

(Sth Cir. 1976) (on rehearing), cert. denied, 429 U.S.

1100, 430 U.S. 983 (1977) (officers observed suspects

enter residence); Rice v. Wolff, 513 F.2d 1280, 1292-93

(8th Cir. 1975), revd on other grounds sub nom. Stone

v. Powell, 428 U.S. 465 (1976) (guesswork or specula-

tion is not enough); United States v. Brown, 467 F.2d

419, 423 (D.C. Cir. 1972) (officers knew residence was

Suspect’s girlfriend’s and saw person of his basic

description enter); United States v. McKinney, 379

F.2d 259, 262-64 (6th Cir. 1967) (tips of several

informants). See also United States v. Hammond, 585

F.2d 26, 28 & n.1 (2d Cir. 1978) (suggesting approval

for counsel’s concession that police may enter and

search for third party as long as they have “probable

cause” to believe person was there). Indeed, these cases

seem to equate “reasonable belief” with “probable

cause,” while allowing the officers to make the

judgment without consulting a magistrate. E.g., United

States v. Cravero, supra, 545 F.2d at 421: United

States v. Brown, supra, 467 F.2d at 424. Here, the only

evidence was that the officers “believed [Gilberto

Arboleda] may have been in the apartment” because

they had heard he sometimes stayed there. There is

nothing to indicate that this belief was at all

reasonable, let alone that there was probable cause to

believe that Gilberto was at his brother’s, the

appellant’s, apartment. If this is the proper standard,

we should at least remand for some findings.

But I would adopt the higher standard enunciated by

the Third Circuit, requiring both a showing of probable

cause to believe that the suspect is on the premises, and

3416

A-20

also exigei.. circumstances. See Government of Virgin

Islands v. Gereau, 502 F.2d 914, 928 (3d Cir. 1974),

cert. denied, 420 U.S. 909 (1975); Fisher v. Volz, 496

F.2d 333, 338-39 (3d Cir. 1974). See also Rice v. Wolff,

supra, 513 F.2d at 1292 n.7 (it is not yet settled

whether exigent circumstances are also required when

there is an entry based on probable cause and an arrest

warrant for a third party). I agree with the Third

Circuit for three reasons. The first is the recognition

given by the Court in Payton v. New York, 48 U.S.L.W.

4375 (U.S. April 15, 1980), to the late Judge

Leventhal’s declaration that “‘Freedom from intrusion

into the home or dwelling is the archetype of the

privacy protection secured by the Fourth Amend-

ment.’” Id. at 4379 (quoting Dorman v. United States,

435 F.2d 385, 389 (D.C. Cir. 1970) (en banc). This

recognition carries with it an equation of entry to

arrest with entry to search for property. In each case,

the interest in preserving home privacy and sanctity is

implicated and deserves constitutional protection. See

id. at 4379-80. See also Rice v. Wolff, supra, 513 F.2d

at 1291. As the Court in Payton held, “Absent exigent

circumstances, that threshold [of the home] may not

reasonably be crossed without a warrant.” 48 U.S.L.W.

at 4380.

The second reason for my agreement with the Third

Circuit is related to the first: the underlying policy of

the Fourth Amendment opposes indiscriminate searches

and seizures conducted under general warrants. Id. at

4378. While the probable cause requirement for entries

based solely on arrest warrants affords some protection

against police discretion, there remains a danger that

relatively indiscriminate entries will be justified subse-

quently by elaborate explanations concerning probable

3417

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cause. [t would be safer to adopt a standard for arrests

in the homes of third parties that is analogous to

seizures of property: absent exigent circumstances, a

warrant must specify the location to be entered in

advance. Cf. id. at 4383 (discussing, by contrast, entries

in the suspect’s own home) (a search warrant standard

would afford more protection, but “{iJf there is

sufficient evidence of a citizen’s participation in a

felony to persuade a judicial officer that his arrest is

justified, it is constitutionally reasonable to require him

to open his doors to the officers of the law”).

My third reason is that this circuit apparently went

even further in United States v. Reed, 572 F.2d 412,

424 (2d Cir.), cert. denied, 439 U.S. 913 (1978), in

requiring, for an arrest in a suspect’s home absent

exigent circumstances, “a warrant to arrest a suspect at

home”—i.e., the equivalent of a search warrant. See

also Dorman v. United States, 435 F.2d 385, 396 (D.C.

Cir. 1970) (en banc) (cited in Reed, supra, 572 F.2d at

424 n.10) (suggesting such a procedure). While the

section of Payton just quoted held that a warrant

specifying the location to be entered is not required for

an entry in a suspect’s home when there is already a

general arrest warrant, the Reed case can be viewed as

strong support for a search warrant requirement in

cases of entries to arrest third parties, absent exigent

circumstances.

To sum up, I do not believe we can fairly presume on

appeal that there was an arrest warrant for appellant’s

brother Gilberto. Even if we do so, appellant should at

minimum have the right to show the absence of

reasonable grounds to believe that Gilberto was then in

the apartment.? In addition, I would follow the Third

: As added ammunition, the majority notes at footnote 5 that

counsel “conceded that the appeal should be dismissed if there was

3418

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Circuit and require a magistrate’s prior finding of

probable cause to believe Gilberto was at that location,

since there were no exigent circumstances here.*

I pass to the majority’s alternative holding that

Arboleda had no legitimate expectation of privacy on

the ledge outside his window. This question arises here

because Officer Bisbee justifies the seizure of the

packet of cocaine on the ledge, which led to all his

subsequent actions, under the “plain view” doctrine. It

is clear that a premise for the application of this

doctrine is that the officer(s) be lawfully on the

premises where the plain view takes place. Coolidge v.

New Hampshire, 403 U.S. 443, 466 (1971); United

States v. Berenguer, 562 F.2d 206, 210 (2d Cir. 1977).

Thus it is important to determine whether the officer

could lawfully go out on the ledge as part of an effort

an arrest warrant for Gilberto.” Majority op. at _. This

“concession” not contained in any brief and made in the heat of a

short oral argument with the court suggesting new points of law not

briefed and made perhaps for hypothetical purposes should not bind

appellant.

3 Even if we were to reject the Third Circuit rule, the majority's

argument that the entry on the ledge was justified by an arrest

warrant for Gilberto is unavailing for yet another reason. In making

this argument the majority suggests that, if there were such a

warrant, it does not matter whether the ledge is an area where

appellant had an expectation of privacy equivalent to the inside of

his apartment. But if appellant is protected under the Fourth

Amendment from entries on to the ledge, see infra, then federal

agents making such an entry to effect any arrest must, absent

special circumstances, first announce their presence and purpose. See

Sabbath v. United States, 391 U.S. 585 (1968); United States v.

Mapp, 476 F.2d 67, 74-75 (2d Cir. 1973). It does not matter that the

entry was accomplished without the use of force. See Sabbath, supra,

391 U.S. at 590. Thus, because there was no announcement here,

regardless of any warrant that there may have been for Gilberto, the

outcome should depend on whether the entry on the ledge was in

fact an intrusion violating a reasonable expectation of privacy.

In response to this point, the majority argues that the

announcement requirement applies only to buildings, whereas the

3419

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to make a warrantless arrest of a supposed occupant of

the apartment.‘

At one time the answer to this question would have

depended on whether the ledge outside appellant’s

apartment was “curtilage,” and hence an area not

subject to entry without a warrant, or at least so

protected against intrusion as to make a seizure

therefrom illegal. See e.g., Amsterdam, Perspectives on

the Fourth Amendment, 58 Minn. l.. Rev. 349, 357

(1974). But since Katz v. United States, 389 U.S. 347

(1967), the concept of a “constitutionally protected

ledge area is ‘more analogous to a yard around a home. Majority op.

at n.6. They suggest that I would prevent officers from even

approaching the front door of a home without a prior announcement.

Id. This analogy is inapposite both because an upper-floor ledge,

unlike a yard, is part of a building and because it is not all clear that

an officer who approaches a front door for purposes of knocking

violates any “reasonable expectation of privacy.” lt is the latter

factor that controls the applicability of the announcement require-

ment. See United States v. Fluker, 543 F.2d 709, 716 (9th Cir. 1976)

(“Thus the critical question before this Court is whether, under the

particular circumstances of this case, appellant Young can be said to

have had a ‘reasonable expectation of privacy’ with respect to the

corridor area separating the door of his apartment from the outer

doorway of the apartment building.”). In Fluker, the court concluded

that the requirement did apply to the particular corridor area under

consideration.

4 Assuming that the majority is following this analysis here, it is not

at all clear why its opinion focuses in part on appellant's “legitimate

expectation of privacy with respect to an object which he threw

outside the apartment with the objective of getting rid of it.”

Majority op. at ___. Leaving aside its entirely unsupported

assumption about appellant’s intent, this passage suggests incor-

rectly that it is helpful here to inquire into his privacy interest in the

object seized. Assuming that the package on the ledge was

sufficiently “incriminating” to satisfy one of the basic plain view

tests, see United States v. Berenguer, 562 F.2d 206, 210 (2d Cir.

1977), appellant cannot claim a privacy interest in the package, see

United States v. Ochs, 595 F.2d 1247, 1256-58 (2d Cir. 1979)

(Friendly, J.), cert. denied, 100 S. Ct. 435 (1979). But the

A-~24

area,” Silverman v. United States, 365 U.S. 505, 512

(1961), has yielded to the concept of “expectation of

privacy,” advanced in Katz and Supported anew in

Rakas v. Illinois, 439 U.S, 128, 143 (1978).

The nutshell elaboration of the concept, as expressed

in Katz, is that “{wJhat a person knowingly exposes to

the public, even in his own home or office, is not a

subject of Fourth Amendment protection,” 389 U.S. at

351, whereas “what he seeks to preserve as private,

even in an area accessible to the public, may be

constitutionally protected,” id. at 351-52. In Katz, for

example, the Court held that a person in a public

telephone booth, visible to the outside world, neverthe-

less had a protected interest in the secrecy of his

spoken words. Id. at 352. The focus, therefore, is on the

particular intrusion being made and on whether the

individual had a reasonable expectation of protection

from that sort of intrusion.

Here, the agent who had the plain view of the

cocaine was climbing on a two-foot ledge and peering

into the windows of appellant’s apartment. I would hold

that an apartment dweller should be protected from

such intrusions because of his “reasonable expectation

of privacy.” If appellant was so protected, then it was

unlawful for the officer to enter the ledge area prior to

the making of a warrantless arrest, under Payton uv.

New York, supra, and United States v. Reed, supra.

The majority says that “[tJhere is no evidence that

Arboleda exercised any exclusive control over the ledge,

which ran along the entire front of the building and

was accessible to other tenants from their windows and

the fire escape.” Majority op. at ___. But access from

the fire escape, separated from the two-foot-wide ledge

by a three-foot fence, over which Detective Bisbee had

3421

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to climb, is immaterial, because the ledge itself was not

a passageway. No one absent an emergency would use

such a narrow ledge to walk on—it was certainly not

designed for any such use-~so it cannot be treated like a

hall, stairwell, garage, or the like, as in United States v.

Penco, 612 F.2d 19, 24-25 (2d Cir. 1979). And I find no

evidence in the record that this ledge was accessible to

any other tenants except by way of the fire escape.

Nor is it very important that the general ledge area

was visible from the street. A living room in a home

may be visible from a distance through a window, but

that fact cannot justify a warrantless entry by the

police to view the same room up close. The difference

between a long-distance view and an actual entry is

suggested by the fact that the package of cocaine might

never have been seen, or recognized as incriminating

evidence, from any vantage point other than the ledge

itself.* It is noteworthy in any event that the police

were summoned to the building by someone who, seeing

Bisbee creeping along the ledge and his peeping-Tom

activities, had reported a burglary in process. Evidently

that person thought that the apartment dwellers had an

expectation of privacy in respect to the ledge.

5 The undisputed testimony of Agent Bisbee was that appellant

threw the “package down toward like underneath the fire escape

which is over the ledge itself by several inches.” The package “hit the

bar from the fire escape and rested there on the ledge.” There is no

indication in the record that the package would have been visible

from any public place, including even the fire escape. Even if there

were, it is not at all clear that this fact would justify the seizure

since the officer was, in my view, intruding on a private sphere when

he actually saw the package.

Insofar as the opinion relies on Judge Platt’s statement that

Bisbee took the package “from the fire escape,” see Majority op. at

———., Such reliance is unjustifiable. I would agree with the majority

that if Arboleda had thrown the package on to the fire escape,

accessible to all other dwellers on that side of the building, he would

be out of luck. But that is not the evidence here.

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In short, when Bisbee climbed over the fence from

the fire escape on to the ledge, he intruded on an area

in which Arboleda had a reasonable expectation of

privacy. If Bisbee had at that time no warrant, there

were no exigent circumstances, and there was no

consent for him to be there, he had no “legitimate

reason for being present,” and the plain view doctrine is

inapplicable. Coolidge v. New Hampshire, supra, 403

U.S. at 466.°

I would accordingly reverse.

6

United States v. Anderson, 552 F.2d 1296 (8th Cir. 1977), relied

on below but not by the majority, is clearly not controlling. In that

case, officers knocked on the front door of a house seeking to

question a suspect. They got no answer but saw a light on inside and

heard a dog barking in back. They went around back “to determine if

there was someone with the barking dog,” id. at 1298, and saw

incriminating evidence inadvertently through a window. Although

the court observed that “private property immediately adjacent to a

home is entitled to the same protection against unreasonable search

and seizure as the home itself,” it justified this admitted intrusion on

the basis of the “agents’ legitimate objective of finding [the suspect]

to question him.” Jd. at 1299. If the entry on the ledge is an

intrusion on a protected area, the Anderson argument is rendered

inapplicable here by Payton v. New York, supra, and United States

v. Reed, supra.

3423

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

nom

No. 528—September Term, 1979

(Argued December 11, 1979 Decided June 9, 1980)

(Petition for Rehearing filed June 23, 1980

Decided October 8, 1980)

Docket No. 79-1278

——

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

OSCAR ARBOLEDA,

Defendant-Appellant.

Before:

FRIENDLY, MULLIGAN and OAKES,

Circuit Judges.

+

On Petition for Rehearing

PER CURIAM:

Appellant has filed a petition for rehearing in which

he alleges, inter alia, that an oral communication

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between counsel for the Government and the defendant

which was not in the record gave the defense

reasonable ground to believe that the Government

would not contend that the officers had a warrant for

Gilberto’s arrest. We gave the Government an opportu-

nity to answer. Although it does not admit that the

conversation was of the tenor asserted by the

defendant, it agrees that in fact there was no warrant

for Gilberto’s arrest but contends that defendant should

not now be allowed to question the officer’s presence on

the ledge since he did not do so in the district court.

While there may well be merit in this position, see

United States v, Knuckles, 518 F.2d 305, 310 (2 Cir.

1978); United States v. Braunig, 553 F.2d 777, 780 (2

Cir. 1977), we prefer to rest our decision on the

adequate and independent ground developed in Part II

of the opinion. When Oscar Arboleda, in his own words,

“tossed” the aluminum foil package “out the window”,

he abandoned any reasonable expectation of privacy.

See Rawlings v. Kentucky, 48 L.W. 4885, 4887 (June

25, 1980). The dissent concedes that if the package had

come to rest when it hit the fire escape, the defendant

would have been “out of luck”. Slip opinions, 3422 n.5.

Fourth Amendment protections did not spring back

into force when the package fell from the fire escape to

the ledge.

The petition for rehearing is denied.

Sa

OAKES, Circuit Judge (dissenting):

I adhere to my previous opinion and therefore dissent

from the denial of rehearing and affirmance of the

judgment on the second aiternative ground advanced in the

Original opinion. I take it that the ‘majority's

6254

sole reliance on the second alternative ground is an

abandonment of its original position that somehow the

defendant had an obligation to raise the issue whether

officers who arrested him in his home had a warrant

for Gilberto, a third person, who was not found in the

home. Surely, at least, the admission of the Govern-

ment that there was in fact no warrant for Gilberto’s

arrest demonstrates the validity of the proposition that

once a defendant has produced sufficient evidence that

he was arrested or subjected to a search without a

warrant, the rule should be, as I believe the basic

federal rule is, that the burden shifts to the

Government to justify the warrantless arrest or search.

See slip op. at 3413 (Oakes, J., dissenting).

As for the alternative ground—that Arboleda aban-

doned any reasonable expectation of privacy when he

tossed the package onto the two-foot ledge outside of

his apartment—I think the subject is adequately

covered in the original dissenting opinion. The fact that

the package, at least according to the detective, hit the

fire escape before it came to rest on the ledge is wholly

immaterial. The case is not one involving a package

being thrown onto an area as to which there was no

expectation of privacy. If my back yard is enclosed by a

fence that shields it from an alleyway and I throw an

object against the fence that remains in the yard, I do

not think that any officer who happens to come down

the alleyway at the time I throw the object and even

sees me throw it has a right to climb the fence to

determine what that object is. See Coolidge v. New

Hampshire, 403 U.S. 443, 466 (1971). ,

I would still reverse.

6255

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