# Petition — Arboleda v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 917

## Text

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

A-21

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

A-22

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

A-23 |

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

A-25

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.

3422

A-26

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

A-27

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

6253

B-2

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

B-3

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0945%3A1. Public record. Not legal advice.