Petition for Writ of Certiorari — Holland v. United States

Sy

on a ALEXANDER t. STEVAS,

CLERK

Supreme Court of the United States

October Term, 1984

MOSE HOLLAND,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR CERTIORARI

Lipsitz, Green, Fahringer, Roll,

Schuller & James

Paul John Cambria, Jr., Esq.

Attorneys for Petitioner,

Mose Holland

Office and Post Office Address

One Niagara Square

Buffalo, New York 14202

(716) 849-1333

April, 1985

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Petitioner, MOSE HOLLAND, seeks a writ of certiorari to re-

view the judgment of the United States Court of Appeals for the

Second Circuit entered on February 8, 1895.

QUESTION PRESENTED

Did the warrantless, non-consensual arrest of the Petitioner,

made under non-exigent circumstances, and when Petitioner was

summoned by law enforcement agents to the hallway of his two-

unit, private residence, violate his right to be free from unreason-

able search and seizure as guaranteed him by the Fourth Amend-

ment to the United States Constitution?

LIST OF PARTIES

The parties to the proceeding in the court whose judgment is

sought to be reviewed are the United States of America and Mose

Holland, the defendant below.

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TABLE OF CONTENTS

Page

QUESTION - PRESENTED ..............--00006. i

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TABLE OF CONTENTS 3 ..ccccccccccssccccvcceess ii

TABLE OF AUTHORITIES .....ccccccsccccccvees iii

OPINIONS BELOW cccccnscvccvcccsvcssacsccsse.s ]

FURRIERS nc ns cckddedvnenssdanddesncesnes l

CONSTITUTIONAL PROVISIONS AND _ STAT-

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STATEMENT OF CASE .....ccsccccccccscccwecees 2

REASONS FOR GRANTING THE WRIT:

I — THE DECISION BELOW LEAVES OPEN SIG-

NIFICANT QUESTIONS OF LAW UNAN-

SWERED BY PAYTON V. NEW YORK, 445 U.S.

573 (1980) AND WHICH HAVE RESULTED IN

CONFLICTING OPINIONS AMONG THE CIR-

CUIT COURTS OF APPEALS .................. BY

Il — THE DECISION BELOW GIVES NO RECOG-

NITION TO THE CURTILAGE DOCTRINE

WHICH MAY BE APPLICABLE TO THE FACTS

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APPENDIX:

I — OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT .... = A-1

If — OPINION OF THE DISTRICT COURT FOR

THE WESTERN DISTRICT OF NEW YORK.... A-12

III — JUDGMENT SOUGHT TO BE REVIEWED . A-13

TABLE OF AUTHORITIES

Page

Boyd v. United States, 116 U.S. 616 (1886) ........... 5, 12

City of Memphis v. Greene, 451 U.S. 100 (1981) ....... 10

Fixel v. Wainwright, 492 F.2d 480 (Sth Cir. 1974) ...... 8, 11

Goldman v. United States, 316 U.S. 129 (1942) ........ 6

Katz v. United States, 389 U.S. 347 (1967) .......... 6, 11, 12

Oliver v. United States, U.S. , 104 S.Ct. 1735

UCI GR Ee cecenncas bh svedecewnscase de 6, 11,12

Olmstead v. United States, 277 U.S. 438 (1928) ........ 6

Payton v. New York, 445 U.S. 573 (1980) ...... 2,5 ,6, 10, 11

Rawlings v. Kentucky, 448 U.S. 98 (1980) ............ 7

United States v. Acevedo, 627 F.2d 68 (7th Cir. 1980),

cert. denied, 449 U.S. 1021 (1980) ................. 9

iv

Page

United States v. Anderson, 533 F.2d 1210 (D.C. Cir.

BPE ccndccdtacadsensbtdsandeneusdecbedindciass 9

United States v. Arboleda, 633 F.2d 985 (2d Cir. 1980),

cert. denied, 450 U.S. 917 (1981) .............e000- 7

United States v. Blank, 251 F.Supp. 166 (N.D. Ohio

POND bbws codcnbddseccedadsdceessesanesdtecens ll

United States v. Carriger, 541 F.2d 545 (6h Cir. 1976) .. 8 :

United States v. Case, 435 F.2d 766 (7th Cir. 1970) ..... 9

United States v. Cruz Pagan, 537 F.2d 554 (1st Cir. 1976) 9

United States v. Eisler, 567 F.2d 814 (8th Cir. 1977) .... 9

United States v. Fluker, 5A3 F.2d 709 (9th Cir. 1976) . 8, 9,12

United States v. Penco, 612 F.2d 19 (2d Cir. 1979) ..... 8

United States v. Reed, 572 F.2d 412 (2d Cir.) cert. denied

sub nom. Goldsmith v. United States, 439 U.S. 913

SIE pecs isinth halite elke wae eis ua dias wale

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United States v. Ross, 456 U.S. 798 (1982) ............ 10

Wattenburg v. United States, 388 F.2d 853 (9th Cir. 1968) 1]

United States Constitution

PE INNS on ndicncusccsosaaskéosencasuseda 2

Statutes

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In The

Supreme Court of the United States

October Term, 1984

MOSE HOLLAND,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

OPINIONS BELOW

The opinions of the Court of Appeals and the United States

District Court for the Western District are not yet reported and

both appear in the Appendix hereto.

JURISDICTION

The judgment of the Court of Appeals for the Second Circuit

was entered on February 8, 1985 and this petition for certiorari

was filed within sixty (60) days of that date. The Court’s jurisdic-

tion is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES

1. The Fourth Amendment, United States Constitution,

which provides:

The right of the People to be secure in their persons, houses,

papers and effects, against unreasonable searches and sei-

zures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched and the per-

sons or things to be seized. |

2. The Statute under which Petitioner is being prosecuted is 2! |

U.S.C. $841} (all), which provides: |

(a) Except as authorized by this subchapter, it shall be un- |

lawful for any person knowingly or intentionally — “ |

(1) to manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute, or dispense, a

controlled substance.

STATEMENT OF THE CASE

The facts of this case are not in dispute. The Petitioner, Mose

Holland, has been charged with a violation of 21 U.S.C.

§841(a)(1). His motion to suppress statements which he allegedly

made to Government agents and items of physical evidence taken

from his home and person was granted by the United States Dis-

trict Court for the Western District. That order was reversed by a

divided Court of Appeals for the Second Circuit in a judgment

entered on February 8, 1985.

The gist of this case lies in the determination of whether the Pe-

titioner was subject to an unlawful, warrantless arrest within his i

home as per Payton v. New York, 445 U.S. 573 (1980). In this in-

stance, the home was a two-unit private residence occupied by

Se

Holland and a second tenant (A-2).” Holland lived in the second

floor apartment and both apartments were secured from the pub-

lic by a locked outer door (A-23) which each tenant could open in

response to a knock or doorbell ring (A-3). The question pre-

sented here centers around whether this area behi id the locked

outer door requires a warrant for lawful entry.

The impetus for entry into Holland's home occurred on Febru-

ary 4, 1983 when officers of the Drug Enforcement Administra-

tion and their Task Force met to conduct surveillance of Holland's

co-defendant, Jerry Brown and to purchase cocaine from him

through the use of an undercover, confidential informant. The

agents tracked Brown as he left the informant’s home and pro-

ceeded to Holland's residence at 137 Arden Lane. Brown re-

turned to the informant’s home, allegedly to consummate the

drug sale and it was there that he was arrested. Deciding to coop-

erate with the police, Brown advised them that he had received

the cocaine from one “Doc” who lived in the upstairs apartment

of the Arden Lane address.

The information received from Brown was radioed by DEA

agents to Deputy Sheriff Robinson, a member of the Task Force.

Robinson was dispatched to the Arden address which he was told

to “secure,” detaining whomever was there pending issuance of a

search warrant.

Robinson, armed and followed by two other armed officers, ar-

rived at the residence at approximately 2:30 pm and rang the bell

(located next to a locked outer door) to the upstairs apartment ( A-

3). Responding, Mose Holland proceeded downstairs and looked

out of the window. U pon recognizing Robinson (the two belong to

the same motorcycle cluh) Holland opened the locked outer door

(A-3) and said, “Hey, Stick, how you doing?” (A-16). Displaying

: Numbers in parentheses preceded by “A” refer to the Appendix to this Peti-

tion.

his badge and with gun drawn, Robinson replied: “Doc, this is

business,” (A-3). Holland then said: “After I opened the door, I

knew something was wrong because you don’t visit me” (75)."

Deputy Sheriff Robinson then entered the dwelling house and

gave Holland his Miranda warnings as the two men proceeded

upstairs (A-16). There is no dispute between the Government and

the Petitioner that Holland was under arrest once Robinson en-

tered the inner sanctum of the residence, a conclusion concurred

in by both the District Court and the Court of Appeals (A-3, A-

17). Likewise, all agree that this warrantless arrest was not made

under exigent circumstances (A-3, A-22).

Once inside, Holland was advised that he would be detained

until a search warrant tu secure the premises could be issued. In

response to questioning from Robinson, Holland stated that he

had $3,000.00 and a half ounce in his pocket. Approximately

three and one-half hours later, the search warrant was secured

and the plastic bag containing white powder and some $3,000.00

in cash were recovered from the defendant's pockets.

Based on these facts, the United States District Court for the

Western District of New York granted defendant Holland's mo-

tion to suppress upon its February 6, 1984 finding that the war-

rantless arrest had occurred within Holland's home and was thus

made in derogation of his right to be free from unreasonable

search and seizure. That finding was reversed by order of the

United States Court of Appeals for the Second Circuit.

The jurisdiction of the United States District Court is founded

upon 18 U.S.C. $3231.

* Numbers in parentheses refer to pages in the record below.

REASONS FOR GRANTING THE WRIT

I

THE DECISION BELOW LEAVES OPEN SIGNIFI-

CANT QUESTIONS OF LAW UNANSWERED BY

PAYTON V. NEW YORK, 445 U.S. 573 (1980) AND

WHICH HAVE RESULTED IN CONFLICTING

OPINIONS AMONG THE CIRCUIT COURTS OF

APPEALS.

In Payton v. New York, 445 U.S. 573 (1980), the Court held

that absent carefully defined exigent circumstances, the Fourth

Amendment prohibits police from making a warrantless, non-

consensual entry into a suspect's home in order to effect an arrest.

In so deciding, the Court reaffirmed the notion of the sanctity of

the individual's home (Boyd v. United States, 116 U.S. 616

(1886)), and cited with approval the reasoning of the Second Cir-

cuit Court of Appeals in United States v. Reed, 572 F.2d 412 (2d

Cir.) cert. denied sub nom. Goldsmith v. United States, 439 U.S.

913 (1978), finding that the individual's right to privacy in his

home was simply too important to permit its invasion without the

safeguard of a warrant.

While Payton answers one significant question, une of equal

import remains open and is squarely presented to the Court in the

instant case; namely, how is the home to be defined and its bound-

aries described? In a two-family private residence which shares a

common hallway guarded by a locked door, does the non-

consensual, warrantless entry of the police into that hallway to ef-

fect the defendant's arrest, constitute an intrusion into the home?

In reversing the determination of the District Court, the Sec-

ond Circuit ruled that Holland had not been arrested in his home

since, as to the hallway, he had no more than a customary ease-

ment of way in that area which was shared by the first floor tenant

(A-2). Relying on its interpretation of Payton, the Court ruled:

“The expectation of privacy against warrantless felony ar-

rests thus has reference to a place . . . and will be violated

only if the place is one that the defendant has the right to

keep private and subject to his exclusive control.” (A-5, em-

phasis supplied).

Petitioner submits that that ruling is erroneous and at odds

with the letter and spirit of the decisions of this Court and that, in

any case, the question of the perimeters of the residence for

Fourth Amendment purposes is ripe for review. The issue pre-

sented, or a comparable variant, has been ruled upon by a major-

ity of the Circuit Courts of Appeals but no clear consensus of

opinion has emerged, particularly after this Court’s decision in

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

Petitioner submits first, that the reasoning of the Second Cir-

cuit was incorrect, founded as it is upon an archaic notion of prop-

erty analysis which does not survive Katz v. United States, Id.

Katz remains the “‘touchstone”’ of Fourth Amendment analysis

(Oliver v. United States, U.S. , 104 S.Ct. 1735, 1740

(1984)), and not the least of its import lies in its overruling of Olm-

stead v. United States, 277 U.S. 438 (1928) and Goldman v.

United States, 316 U.S. 129 (1942), which equated a violation of

the Fourth Amendment with a physical trespass onto property.

Inflexible concepts of property law no longer serve to determine

the reach of the Fourth Amendment. Thus, whether or not Mose

Holland had exclusive control of the hallway/vestibule area does

not answer the more apropos questions of what “actual (subjec-

tive) expectation of privacy” the person has in the place and

whether that expectation is ‘‘one that society is prepared to recog-

nize as ‘reasonable’ ” (Katz v. United States, supra, concurring

opinion of Harlan, J. at 361). After all, it is no longer open to dis-

pute that the Fourth Amendment protects people, not places.

\

This less restrictive analysis requires a review of factors beyond

the right to exclude others. These might include the individual’s

expectation, the precautions he took to maintain his privacy, the

validity of his being on the premises and the possessory interest he

has in those premises. Rawlings v. Kentucky, 448 U.S. 98, 105

(1980).

The divergence of opinion regarding the correct analysis of a

defendant’s expectation of privacy in an area over which he may

not have exclusive control is reflected even in the Second Circuit’s

opinion below. In his dissent, Judge Jon O. Newman wrote that

Holland’s right to be free from an unreasonable seizure had been

violated given the nature of the place where the arrest occurred

and the manner in which the defendant was using it (A-11). Be-

cause no one could enter Holland’s apartment without passing

through the hallway, Judge Newman felt it to be “intimately asso-

ciated” with Holland’s home in a way that the hallway of a multi-

unit apartment building would not be. As to the manner in which

the hallway was used by Holland, the dissent found it significant

that Holland had viewed the outside door as the door to his home,

unlocking it only when able to identify his visitor as someone

whom he wished to admit (A-11, 12).

Just as Judge Newman’s analysis stands in sharp conflict with

the majority’s approach to resolution of the issue, so, too, do the

lower courts appear to be divided, having received no clear guid-

ance from this Court.

As mentioned, the Second Circuit Court of Appeals continues

to define the gravamen of the issue as being one of exclusive con-

trol over the place of arrest (see, e.g. United States v. Arboleda,

633 F.2d 985 (2d Cir. 1980) cert. denied 450 U.S. 917 (1981)). In-

deed, that Court has explicitly ruled that the Supreme Court’s

analysis in Katz does not undercut the merits of earlier Second

Circuit decisions finding no reasonable expectation of privacy in

commonly shared hallways. United States v. Penco, 612 F.2d 19,

24-25 (2d Cir. 1979).

Other courts, however. have taken less narrow an approach. In

United States v. Carriger, 541 F.2d 545 (6th Cir. 1976), a federal

agent gained entry to a locked, 12 unit apartment building and

observed the appellant in the third floor hallway, conducting an

apparent drug transaction. The defendant was then arrested in

his apartment.

In reversing the conviction, the Sixth Circuit held, in reliance

upon Katz, that a tenant in an apartment building does have a

reasonable expectation of privacy in those common areas of the

building not open to the general public. The Court opined that

while a tenant may expect other tenants and invited guests to en-

ter the common areas of the building, he has a justifiable expecta-

tion that the uninvited will not so intrude (Id. at 551).

Consistent with that reasoning is the Fifth Circuit’s opinion in

Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974). The Court con-

sidered whether or not the defendant had a cognizable right to pri-

vacy in the backyard of a four-unit apartment building. Heeding

the Government’s argument that the backyard is an area shared

with other tenants, the Court nevertheless concluded:

‘While the enjoyment of his backyard is not as exclusive as

the backyard of a purely private residence, this area is not as

public or shared as the corridors, yards or other common ar-

eas of a large apartment complex or motel” (Id. at 484).

The Fifth Circuit is not alone in assessing a Fourth Amend-

ment entitlement by reference to the nature of the area and the use

to which it is put, thereby drawing some distinction between the

small common area shared by a few and a vast number of shared

areas in a large apartment complex. The same approach was

taken in United States v. Fluker, 543 F.2d 709 (9th Cir. 1976) cited

by Judge Newman in his dissent below.

The facts of Fluker are noticeably akin to those at bar. The en-

trance way at issue was a common doorway leading to a small cor-

ridor shared by the two basement tenants, one of whom was the

defendant. The landlord resided upstairs. The doorway was ordi-

narily kept locked and only the tenants and landlord had keys (Id.

at 712).

In considering whether a drug agent’s forceable entry through

a locked outer doorway violated a statute prohibiting the same,

the Court initially noted that the premises was not a multi-unit

building and:

“The two lower-level tenants thus exercised considerably

more control over access to that portion of the building than

would be true in a multi-unit complex, and hence could rea-

sonably be said to have a greater reasonable expectation of

privacy than would be true of occupants of large apartment

buildings” (Id. at 716). (See also United States v. Case, 435

F.2d 766 (7th Cir. 1970)).

That view is not universally held, other circuits agreeing with

the Second that exclusivity of control is the outstanding criterion

by which the expectation of privacy is to be measured. In United

States v. Eisler, 567 F.2d 814 (8th Cir. 1977), the Court of Appeals

for the Eighth Circuit held that the hallway of an apartment com-

plex was not a domain recognized under the Fourth Amendment

since the right to privacy implies an expectation that the individ-

ual will be free from any intrusion, not merely that which is un-

warranted (Id. at 816). In United States v. Anderson, 533 F.2d

1210, 1214 (D.C. Cir. 1976), it was held that no constitutionally

protected expectation of privacy inhered in the corridors of a

rooming house shared by all who had a legitimate reason to be on

the premises. See also United States v. Acevedo, 627 F.2d 68, 69

fn. 1 (7th Cir. 1980) cert. denied 449 U.S. 1021 (1980); United

States v. Cruz Pagan, 537 F.2d 554, 558 (Ist Cir. 1976).

10

While this potpourri of opinion certainly attests to the varieties

of analysis possible even with a much less decided emphasis on

common law property concepts, resolution and guidance become

all the more vital with the Court’s pronouncement in Payton.

Moreover, various of the Court’s other recent Fourth Amend-

ment decisions downplaying the nature of the place in favor of

analysis of the individual’s actual expectation and the reasonable-

ness of that expectation, serve even further to emphasize the need

for clarification.

That an individual should not be accorded a lesser degree of

constitutional protection because of his type of residence was a

factor of note to dissenting Judge Newman. Judge Newman de-

plored the fact that had Holland lived in a modern apartment

house with a buzzer and speaker mechanism, he would have been

able to admit Deputy Robinson to his apartment without ever

leaving its confines and thereby jeopardizing his constitutional

rights (A-8). Similarly, Petitioner submits that were he able to af-

ford the luxury of a private residence, his constitutionally pro-

tected right to privacy would have remained intact:

“The interest in privacy has the same dignity in a densely

populated apartment complex, cf. Payton v. New York. . .

or in an affluent neighborhood of single-family homes” City

of Memphis v. Greene, 451 U.S. 100, 127 (1981).

The Fourth Amendment’s protection should not hinge on these

amorphous distinctions any more than on those baseless and now

judicially condemned distinctions between searches of luggage

and searches of “‘less worthy”’ containers. As the Court explained

in United States v. Ross, 456 U.S. 798 (1982):

“For just as the most frail cottage in the kingdom is abso-

lutely entitled to the same guarantees of privacy as the most

majestic mansion, so also may a traveler who carries a tooth-

brush and a few articles of clothing in a paper bag or knotted

scarf claim an equal right to conceal his possessions from of-

11

ficial inspection as the sophisticated executive with a locked

attache case”’ (Id. at 822).

That a man’s home is his castle is an incontrovertible aphorism

which has taken on renewed importance in the wake of Payton v.

New York. Petitioner submits that the time is opportune for this

Court to clarify just what the boundaries of that castle might be

for purposes of Fourth Amendment review.

II

THE DECISION BELOW GIVES NO RECOGNI-

TION TO THE CURTILAGE DOCTRINE WHICH

MAY BE APPLICABLE TO THE FACTS OF THIS

CASE.

In Fixel v. Wainwright, 492 F.2d 480 (Sth Cir. 1974), the Court

noted that the petitioner therein had a justifiable expectation of

privacy in his backyard (although shared by three other tenants)

and in so holding, relied on the common law concept of curtilage,

that area immediately surrounding the house and to which the

protection of the Fourth Amendment also extends (Id. at 483).

(See also United States v. Blank, 251 F.Supp. 166, 171-172

(N.D.Ohio 1966) common hallway protected under curtilage doc-

trine).

The curtilage doctrine, while historically recognized by this

Court, received a fresh salvo of approval in Oliver v. United

States, U.S. , 104 S.Ct. 1735 (1984), erasing any re-

maining doubts as to its vitality in the wake of Katz v. United

States, 389 U.S. 347 (1967). See, e.g. Wattenburg v. United

States, 388 F.2d 853, 857 (9th Cir. 1968). The curtilage definition

was reiterated as being the “‘area to which extends the intimate

activity associated with the ‘sanctity of a man’s home and the pri-

12

vacies of life’ ’’ (Oliver, supra, at U.S. , 1048. Ct. 1742,

quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).

If, in a two unit apartment, the home is only the apartment

proper, it is reasonable to assume that at least that area immedi-

ately adjacent to the home will remain private (Oliver v. United

States, Id., at U.S. , 104.S.Ct. 1742). In this case, that

area might be expected to include the common hallway and vesti-

bule where Holland could reasonably expect to engage in activi-

ties connected with his home, free from the intrusive eye of the

uninvited.

Certainly, the record substantiates the actual expectation of

privacy the Petitioner presumed to be his. For instance, when

Holland left his apartment proper to answer the bell, he left his

upstairs door open (78), signifying his belief that the outer, locked

door stood between him and intruders (see United States v. Flu-

ker, 543 F.2d 709, 716 (9th Cir. 1976). Holland released the out-

side entrance lock only upon recognizing his friend, Deputy Ro-

binson.

Holland’s own actions in keeping the vestibule door locked

while allowing the inner door to remain open evidence that the

area which he attempted to shield from public intrusion included

the hallway, shared though it was with one other tenant. More-

over, his actual subjective expectation of privacy is validated by

the fact that intrusion into the area in question violates a predomi-

nant societal value, the sanctity of the home and its immediate

environs (Oliver v. United States, supra, at 5 re

S.Ct. 1743).

With the renewed interest afforded the curtilage doctrine sub-

sequent to the decision in Oliver v. United States, petitioner ap-

propriately seeks amplification of that doctrine and its potential

applicability to facts such as those found on this record.

iia

13

CONCLUSION

For these reasons, the writ of certiorari should be granted.

Respectfully submitted,

Lipsitz, Green, Fahringer, Roll,

Schuller & James

Paul John Cambria, Jr., Esq.

Attorneys for Petitioner,

Mose Holland

Office and Post Office Address

One Niagara Square

Buffalo, New York 14202

(716) 849-1333

April, 1985

APPENDIX

ai

UNITED STATES COURT OF APPEALS

A-1l

For THE SECOND CIRCUIT

Cal. No. 1360 — August Term, 1983

(Argued: June 13, 1984 Decided: February 8, 1985)

Docket No, 84-1088

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

—_—V,—

Mose HOLLAND,

Defendant-Appellee.

Before:

FRIENDLY, VAN GRAAFEILAND, and NEWMAN,

Circuit Judges.

npn i

Appeal from an order of the United States District

Court for the Western District of New York (Elfvin, J.)

granting defendant’s motion to suppress evidence.

Reversed.

- oe

FRANK J. CLARK, III, Ass’t U.S. Att’y., Buf-

falo, N.Y. (Salvatore R. Martoche, U.S.

Att’y., Buffalo, N.Y., on the brief), for

Plaintiff-Appeliant.

7211

A-2

PAUL J. CAMBRIA, Jn., Buffalo, N.Y. (Rochelle

A. Reback, Lipsitz, Green, Fahringer, Roll,

Schuller & James, Buffalo, N.Y., on the

brief), for Defendan‘-Appellee.

VAN GRAAFEILAND, Circuit Judge:

This is an appeal by the Government from an order

of the United States District Court for the Western Dis-

trict of New York (Elfvin, J.) suppressing certain evi-

dence and oral admissions which followed appellee’s war-

rantless arrest. Although the district court found that

the arrest was based on probable cause, thus satisfying

the requirement of United States v. Watson, 423 U.S.

411 (1976), it held the arrest to be illegal under Payton

v. New York, 445 U.S. 573 (1980), because appellee was

“inside his home” when the arrest took place. Disagree-

ing with this conclusion, we reverse.

Appellee is the tenant in the second floor apartment

of a two-story house in Buffalo. Entry to the apartment

is by means of a common hallway, which also serves the

first floor apartment. It is not contended that appellee

had any more than the customary easement of way in the

common hallway, pe Neri which gave the occupants

of the upstairs downstairs apartments and their

visitors the right to use the hallway. See Presby V.

Benjamin, 169 N.Y. 377, 379 (1902); Federal Waste

Paper Corp. v. Garment Center Capitol, Inc., 268 A.D.

230, 233-34 (1st Dep’t 1944), aff'd, 294 N.Y. 714 (1945);

Swain v. Mizner, 74 Mass. 182 (1857).

On February 4, 1983, Deputy Sheriff James Robin-

son, who was participating with other officers in a drug

7212

A-3

bust, rang the bell for appellee’s apartment at the ground

floor entranceway to the common hallway. Appellee and

Robinson were friends, or at least acquaintances, and

appellee knew that Robinson was a police officer. When

Robinson rang the bell, appellee left his second floor apart-

ment, walked down a flight of stairs to the first floor, then

down another flight of stairs to a hallway or vestibule

leading to the outer door. Recognizing Robinson, he

opened the door to him. The district court found that

appellee was not induced to open the door as the result

of police deception or coercion.

When the door was opened, Robinson drew his gun,

displayed his badge and said, “Doc, this is business.”

From that time on, appellee’s liberty of movement was

restricted, and he could not reasonably have believed that

he was free to leave. He was under arrest. See United

States v. Mendenhall, 446 U.S. 544, 554 (1980); Henry

v. United States, 361 U.S. 98, 103 (1959) ; United States

Vv. Thompson, 356 F.2d 216, 222 (2d Cir. 1965), cert.

denied, 384 U.S. 964 (1966). The Government contends

that the arrest was lawful, because appellee then “was as

exposed to public view, speech, hearing, and touch as if

(he) had been standing completely outside [his] house.”

United States v. Santana, 427 U.S. 38, 42 (1976); see

United States v. Whitten, 706 F.2d 1000, 1015 (9th

Cir. 1983), cert. denied, 104 S. Ct. 1593 (1984); United

States v. Mason, 661 F.2d 45, 47 (5th Cir. 1981). We

see no need, however, to treat this as a “threshold” case.

Assuming that appellee’s arrest took place in the vestibule

or hallway, it nevertheless did not take place in appellee's

“home”.

Although the Supreme Court has accorded apart-

ments and, hotel rooms status as “homes” for Fourth

7213

A-4

Amendment purposes, it has never given the same status

to adjoining common hallways. For example, in Miller v.

United States, 357 U.S. 301 (1958), where police officers

forced their way into the defendant’s basement apartment,

the Court said that they “broke the door to invade his

home.” Jd. at 314. In Johnson v. United States, 333 U.S.

10 (1948), where Johnson was arrested in her hotel room,

the Court described the “[e]ntry to defendant’s living

quarters” as the beginning of the search. Jd. at 13. In

Ker v. California, 374 U.S. 23 (1963), Justice Brennan,

one of the staunchest advocates of Fourth Amendment re-

straints, condemned only the “unannounced intrusion of

the arresting officers into [petitioners’] apartment.” Id.

at 46 (Brennan, J., concurring in part and dissenting in

part). In United States v. Reed, 572 F.2d 412 (2d Cir.

1978), where we announced this Court’s disapproval of

warrantless, non-exigent arrests inside a defendant’s

home—in that case, an apartment—we took special note

of the fact that the arrest did not occur in the hallway.

Id. at 423.

Congress, too, has recognized this common-sense dis-

tinction between places of abode, such as apartments,

and common hallways. The short-lived National Prohibi-

tien Act, Pub. L. No. 46, 41 Stat. 305, 315 (1919), as

supplemented by Pub. L. No. 96, 42 Stat. 222, 223 (1921),

prohibited the warrantless search of a “private dwelling”

and construed that term to include “the room or rooms

used and uccupied not transiently but solely as a resi-

dence in an apartment house, hotel, or boarding house.”

In Katz v. United States, 389 U.S. 347 (1967),

Justice Stewart, writing for the majority, stated that “the

Fourth Amendment cannot be translated into a general

constitutional ‘right to privacy.’” Jd, at 350. Justice

7214

Harlan, concurring, said that the extent of Fourth Amend-

ment protection generally is determined by reference to a

place. Jd. at 361. Consistent with this reasoning, the

Court thereafter held that a suspect has no generalized

right of privacy against a warrantless felony arrest based

on probable cause, United States v. Watson, supra, 423

U.S. 411, but recognized the existence of a limited right

of privacy against an arrest in the suspect’s home, Payton

v. New York, supra, 445 U.S. 573.

The expectation of privacy against warrantless felony

arrests thus has reference to a place, United States v.

Agapito, 620 F.2d 324 331 (2d Cir.), cert. denied, 449

U.S. 834 (1980), and will be violated only if the place is

one that the defendant has the right to keep private and

subject to his exclusive control. See Rakas v. Illinois,

439 U.S. 128, 149 (1978); United States v. Eisler, 567

F.2d 814, 816 (8th Cir. 1978) ; United States v. Williams,

565 F. Supp. 353, 361-62 & n.15 (N.D. Ill. 1988). Ac-

cordingly, it is the established law of this Circuit that the

common halls and lobbies of multi-tenant buildings are

not within an individual tenant’s zone of privacy even

though they are guarded by locked doors. See, e.g., United

States v. Martinez-Gonzalez, 686 F.2d 93, 101-02 (2d

Cir. 1982); United States v. Arboleda, 633 F.2d 985,

991-92 (2d Cir. 1980), cert. denied, 450 U.S. 917 (1981) ;

United States v. Penco, 612 F.2d 19, 24-25 (2d Cir. 1979) ;

United States v. Corcione, 592 F.2d 111, 118 (2d Cir.),

cert. denied, 440 U.S. 975 (1979); United States v.

Wilkes, 451 F.2d 938, 941 n.6 (2d Cir. 1971); United

States v. Llanes, 398 F.2d 880, 883-84 (2d Cir. 1968),

cert. denied, 393 U.S. 1032 (1969); United States v.

Conti, 361 F.2d 153, 157 (2d Cir. 1966), vacated on other

grounds, 390 U.S. 204 (1968); United States v. Miguel,

340 F.2d 812, 814 (2d Cir.), cert. denied, 382 U.S. 859

7215

A-6

(1965) ; United States v. Moore, 463 F. Supp. 1266, 1270

(S.D.N.Y. 1979) ; United States y. St. Clair, 240 F. Supp.

338 (S.D.N.Y. 1965).

Moreover, we never have held that the common areas

must be accessible to the public at large nor have we re-

quired a quantified amount of daily traffic through the

area as a basis for determining that a common area is

~ “beyond an individual’s protected zone of privacy. See

United States v. Corcione, supra (hallway outside second-

story apartment in two story, two-apartment house) ;

United States v. Arboleda, supra (fire escape); United

States v. Wilkes, supra (hallway outside ground floor

apartment in New York City brownstone) ; United States

v. Llanes, supra (hallway outside rear ground floor apart-

ment). See also Polk v. United States, 314 F.2d 837 (9th

Cir. 1963) (per curiam) (outside stairway serving first

and second floor flats), cert. denied, 375 U.S. 844 (1963).

This rule gives tenants the benefit of much-needed

police protection in common hallways, People v. Capone,

85 Misc.2d 1071, 1074 (1962), while it preserves for

them the privacy of their actual places of abode, their

apartments. It also lays down a clearly-defined boundary

line for constitutionally permissable police action, which is

readily apparent to an officer in the field, without a need

for counting apartments, analyzing common-hallway traf-

fic patterns or interpreting the mental processes of a

suspect relating to an area used in common with others.

In addition to protecting the public against the untoward

effect of a “constable’s blunder,” it protects the “con-

stable” against potential civil liability under 42 U.S.C.

§ 1983 resulting from an erroneous determination as to

whether the door to a tenant’s “home” is his apartment

door or a door at the other end of a common hallway.

7216

See Segura v. United States, 52 U.S.L.W. 5128, 5132

(July 5, 1984). We see no reason why the rule should

not be applied in the instant case.

In passing along the common ways in his building on

any given day, including the day of his arrest, appellee

reasonably might expect to meet the landlord or his

agents, the occupants of the first floor apartment, delivery-

men, tradesmen, or one or more visitors to the first floor

apartment. See United States v. Eisler, supra, 567 F.2d

at 816; United States v. Anderson, 533 F.2d 1210, 1214

(D.C. Cir. 1976). He had no right to exclude them from

the common hallway, and there is no indication that he

ever tried to do so. In United States v. Penco, supra,

612 F.2d at 25, where, as here, the defendant’s argument

was based upon Katz v. United States, supra, 389 U.S.

347, we said:

The argument that the privacy expectations analysis

of Katz v. United States, 389 U.S. 347 (1967), some-

how undercut the reasoning of [United States v.

Miguel, supra] and [United States v. Conti, supra)

was expressly considered and rejected by our Court

in United States v. Llanes, 398 F.2d 880 (2 Cir.

1968), cert. denied, 393 U.S. 1032 (1969).

Prior to Payton v. New York, supra, 445 U.S. 578,

the Supreme Court never had clearly established whether

a warrant was needed for the non-exigent felony arrest

of a person inside his home. /d. at 574. With three

justices vigorously dissenting, the Court answered the

“narrow question”, id. at 582, in the affirmative. Justice

Stevens, writing for the majority, said:

We ... hold that the Fourth Amendment... . pro

hibits the police from making a warrantless and

7217

A-8

nonconsensual entry into a suspect’s home in order

to make a routine felony arrest.

Id. at 576.

We believe that, when the Payton majority said they

were answering a “narrow question”, they meant exactly

that. Reading Payton in the light of the ‘“question’s”

controversial history, we find no intent to broaden the

definition of “home” so as to include, as here, the en-

tranceway to a common hallway.

The order of the district court is reversed.

JON O. NEWMAN, Circuit Judge, dissenting:

Mose Holland was in his second-floor apartment in a

two-family house when he heard someone ring the bell

to his apartment. He walked down two flights of stairs,

looked out the window in the outside door, recognized his

friend, Deputy Sheriff Robinson, and opened the door.

Robinson then displayed a gun and a badge, said “Doc,

this is business,” and arrested Holland without a warrant

just inside the door. If Holland had been living in a

modern building equipped with a buzzer mechanism for

unlocking the outside door and a means of communication

between apartment and entrance, he would have ascer-

tained his visitor’s identity by recognition of his voice

instead of his face, buzzed to admit the officer through

the outside door, and waited in his apartment until the

officer climbed the two flights of stairs and knocked on

his apartment door. If Holland had then opened that door

2 The Government makes no claim that exigent circumstances

justified a warrantless entry or that Holland consented to that

entry.

7218

A-9

and seen Robinson with gun and badge, his arrest just

inside his apartment door would have violated the Fourth

Amendment. Payton v. New York, 445 U.S. 573 (1980) ;

United States v. Reed, 572 F.2d 412 (2d Cir.), cert.

denied, 439 U.S. 913 (1978). The majority concludes

that on the facts of this case no Fourth Amendment vio-

lation occurred because Holland, in the course of admit-

ting his visitor to his home in the only way available to

him, was arrested in a “common hallway’—the vestibule

just inside the outside door. I respectfully dissent be-

cause I do not believe the Fourth Amendment protection

available to those admitting visitors to their apartment

homes in a modern building is lost in the humble sur-

roundings in which Mose Holland lives.

My difference with the majority stems from a funda-

mental disagreement as to the proper approach in deter-

mining the scope of Fourth Amendment protection. Em-

ploying essentially property concepts, the majority notes

that Holland had no more than “the customary easement

of way” in the vestibule. His lack of exclusive rights in

any part of the premises other than the confines of his

apartment results in his loss of Fourth Amendment protec-

tion against a warrantless arrest in his “home.” In my

view, reliance on property concepts, which formerly served

to explain why a listening device placed against a wall

was lawful, Goldman v. United States, 316 U.S. 129

(1942), while a “spike mike” penetrating a wall was not,

Silverman v. United States, 365 U.S. 505 (1961), has

been displaced by Katz v. United States, 389 U.S. 347

(1967), in favor of an inquiry into reasonable expectations

of privacy as the determinant of Fourth Amendment pro-

tection. See United States v. Santana, supra, 427 U.S.

38, 42 (1976).

7219

A-10

In Katz v. United States, supra, the Supreme Court

rejected the Government’s warrantless overhearing of a

suspect’s end of telephone calls placed from a public tele-

phone booth. The Court explained that its conclusion

did not rest on a finding that the place where the seizure

occurred was a “constitutionally protected area.” Id.

a 351. Rather the Court determined that under the

amstances there had been an intrusion on the defen-

ua.it’s justifiable privacy interests. Jd. at 353. In the

majority’s well-known phrase, “[{T]he Fourth Amend-

ment protects people, not places.” Jd. at 351. But, as

Justice Harlan’s concurring opinion helpfully explains,

the determination of what privacy interests of people

society is prepared to regard as reasonable often requires

“reference to a ‘place.’” Jd. at 361. A person’s expecta-

tion of privacy in his home will normally be considered

reasonable, and his expectation of privacy in activities

conducted “in the open” will usually be deemed unrea-

sonable, though the inquiry cannot consider “place” apart

from its use. For Justice Harlan, it was not decisive

that the telephone booth was “ ‘accessible to the public’

at other times.” Jd. By shutting the door to the booth

and paying the toll to place his call, the defendant had

entered a “temporarily private place” in which he was

reasonably entitled to expect freedom from governmental

intrusion. /d.* The lesson of Katz is that, before a place

can be labeled “private” or “public” for purposes of deter-

mining the reasonableness of a person’s expectation of

privacy, it is necessary to consider both the nature of

the place and the manner in which the person is using it.

3 The reasoning of Justice Harlan’s concurrence has been widely

followed. See, ¢.g., Oliver v. United States, 104 S. Ct. 1735, 1740

(1984); Illinois v. Andreas, 103 S. Ct. 3319, 3323 (1983); United

States v. Santana, 427 U.S. 38, 42 (1976); United States v. Reed,

572 F.2d 412, 422 (2d Cir.), cert. denied, 439 U.S. 913 (1978).

7220

A-11

The subsequent decisions in United States v. Watson,

423 U.S. 411 (1976), and Payton v. New York, supra,

are entirely consistent with this approach. A warrantless

arrest was upheld in Watson because it occurred in a

public restaurant and no circumstances indicated any

private use of the premises by the defendant. By con-

trast, a warrantless arrest was ruled unlawful in Payton

because it occurred in a home and no circumstances in-

dicated any public use of the premises. See also Oliver

v. United States, 104 S. Ct. 1735, 1741-42 (1984) ; United

States v. Santana, supra, 427 U.S. at 42. Holland was

arrested in a common hallway of a two-family house.

That hallway is not as public as the restaurant in Watson,

nor as private as the interior of the home in Payton.

To determine whether Holland had a reasonable expecta-

tion of privacy in that hallway at the time of his arrest,

we should consider the nature of the “place” and the

circumstances under which he was then using it.

Access to the hallway was extremely limited. For all

that appears, the only persons who could gain access were

those admitted with the consent of either Holland or the

tenant of the first-floor apartment. Moreover, the hall-

way was an enclosed area, not exposed to public view,

except for the brief moment when the door was opened to

admit a visitor. Visitors, and even Holland himself, could

not enter Holland’s apartment without passing through

the hallway. The hallway was closely, indeed “intimate-

ly,” associated with Holland’s home, see Oliver v. United

States, supra, 104 S. Ct. at 1742, far more so than would

be true of lobbies and hallways of apartment buildings

with numerous apartments.

Most significantly, when Holland opened the outside

door, he was using it as the door to his home. When he

7221

A-12

heard the doorbell ring, he came down the stairs and

looked out the window to identify his visitor, a “normal

precaution[] to maintain his privacy,” Rawlings v. Ken-

tucky, 448 U.S. 98, 105 (1980). In fact, the only way

Holland could admit Robinson to his home was to go

downstairs, open the outside door, and escort his visitor

through the hallway and up the stairs to his apartment.

Holland is not asserting a privacy interest in the hallway

apart from the use he was then making, for example, if

he had left something in the hallway. The facts establish

a location that was sufficiently related to a home and that

was being used in a sufficiently direct connection with

access to a home to demonstrate a reasonable expectation

of privacy. Cf. United States v. Fluker, 543 F.2d 709,

716-17 (9th Cir. 1976) (tenant of basement apartment

in three-apartment dwelling had reasonable expectation

of privacy in area separating his apartment from outer

door of building for purposes of applicability of 18 U.S.C.

§ 3109 (restricting forcible entry) ).

The majority invokes several decisions of our Circuit

for the proposition that common hallways of multi-tenant

buildings are not within an individual] tenant’s zone of

privacy. — F.2d at —. In none of those cases, however,

did the law enforcement agent gain access to the hallway

by virtue of the defendant’s response to the agent’s disp'ay

of authority. The agent got in because the building door

was unlocked, United States v. Wilkes, 451 F.2d 938, 940

(2d Cir. 1971), or because a building employee let him in,

United States v. Penco, 612 F.2d 19, 21 (2d Cir. 1979),

or because another tenant let him in, United States v.

Corcione, 592 F.2d 111, 114 (2d Cir.), cert. denied, 440

U.S. 975 (1979), or because another tenant was coming

out, United States v. Miguel, 340 F.2d 812, 814 (2d Cir.),

cert. denied, 382 U.S. 859 (1965). I have no doubt that

71222

ae

A-13

a tenant in a multi-apartment building must accept the

risk that someone else will admit a police officer into the

common areas of the building and, if the defendant is

present in those areas, he may be arrested there upon

probable cause. But following Katz (temporally and sub-

stantively), I believe a tenant has a legitimate expecta-

tion of privacy in a hallway when he is using it to admit

someone to his home; at least, this should be so in a smal!

two-family house like Holland’s.

I appreciate the majority’s preference for a “clearly-

defined boundary line” that will be readily apparent to

an officer in the field. However, that line already exists

for cases such as this: the line between arrests with a

warrant and those without a warrant. Sheriff Robinson,

or any other law enforcement officer sent to arrest a

suspect in his home under non-exigent circumstances, can

always satisfy the requirements of Payton by presenting

evidence of probable cause to a neutral magistrate and

obtaining a warrant. Armed with a warrant, Robinson

could lawfully have arrested Holland in the hallway, and

even a defect in the warrnt would not have barred the use

of evidence thereby obtained. United States v. Leon, 104

S. Ct. 3405 (1984). We need not ignore the reality of

the private use Holland was making of the vestibule

when he answered Robinson’s ring in order to give police

officers a discernible line. The Fourth Amendment, by

normally requiring warrants, has already done that.

It is especially distressing to see an officer’s poten-

tial civil liability under 42 U.S.C. § 1983 (1982) relied

upon as a reason for fashioning a needlessly restrictive

rule that denies a tenant any protection against a war-

rantless arrest beyond the physical confines of his apart-

ment. That constitutional tort action already has its

A-14

own objective good-faith immunity defense to protect the

officer who ought not to be held in damages even though

he may have transgressed a constitutional standard. See

O’Hagan v. Soto, 725 F.2d 878, 879 (2d Cir. 1984).

Difficulty in applying constitutional limits to the facts

of a specific case may justify limiting an officer’s exposure

to damage liability by a defense of qualified immunity, but

such difficulty ought never to be any part of the deter-

mination of the substantive content of the pertinent con-

stitutional standard.

In the majority’s view, when Mose Holland came

downstairs and stood in the vestibule to answer Sheriff

Robinson's ring, he was using a right of easement. In

my view, he was admitting a visitor to his home. Be-

cause I find no case permitting a warrantless arrest in

such circumstances and believe that a warrant was re-

quired under the principles of Katz and Payton, I dissent.

ne ot re Anne ee?

A-15

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

THE UNITED STATES OF AMERICA CR-83-26E

-vs-

JERRY BROWN and

MOSE HOLLAND MEMORANDUM

This Memorandum supports my earlier Order in these prem-

ises.

In this prosecution under 21 U.S.C. 8841(a)(1) for alleged un-

lawful distribution and possession of the controlled substance co-

caine, defendant Hoiland has moved to suppress certain state-

ments allegedly made by him to government agents as well as

certain items of physical evidence taken from his person and from

his home by the Government.

The facts surrounding the instant motion are basically undis-

puted. On the morning of February 4, 1983 agents of the Drug

Enforcement Administration (“the DEA’) and police officers as-

signed to the DEA’s Task Force met for the purpose of formulat-

ing an investigative plan regarding the source of co-defendant

Brown's supply of cocaine. (Transcript of the Suppi.ssion Hear-

ing, [““T’’] 1-5 & 1-6). It was decided that two purchases of co-

caine would be arranged that day by utilizing the assistance of a

government informant and that surveillance units would track

Brown's movements during the course of the day.

Thereafter agents twice followed Brown from the informant’s

residence at 71 Collins Walk, Buffalo, N.Y. to a two-family dwell-

ing located at 137 Arden Lane in Buffalo (T 1-9 & 1-10). On the

second occasion one of the agents exited his vehicle and was able

to get close enough to Brown to overhear him tell someone that he

A-16

was “going upstairs” (T 1-11). When Brown returned to 71 Col-

lins Walk at approximately 1:30 p.m. to consummate the second

sale, he was placed under arrest by agents waiting inside (T 1-12).

After being informed of his “Miranda rights” Brown was asked

whether he wished to cooperate with the government. Brown in-

dicated that he did and in response to Agent Burke's inquiry

stated that lie had obtained the cocaine from an individual by the

name of “Doc” who lived in the upstairs apartment at the Arden

Lane address. (T 1-12).

Shortly thereafter Deputy Sheriff Robinson received instruc-

tions from Agent Joura via the DEA radio to proceed to Arden

Lane and to “secure” the premises. Robinson had been involved

in the investigation and the earlier surveillance and understood

that these directions required him to proceed to the dwelling and

detain whoever was there (T 1-59 & 1-60). Robinson was aware

that other officers had earlier seen Brown entering the Arden

Lane premises, that Brown had been arrested at 71 Collins Walk

and that Brown had stated to the agents that the seized cocaine

had been obtained from a man named “Doc” in the upstairs Ar-

den Lane apartment (T 1-60 to 1-63). Due to their common mem-

bership in a motorcycle club Robinson was acquainted with de-

fendant, knew that he was referred to by the nickname “Doc” (T

1-61) and also knew that Holland lived at 137 Arden Lane (T 1-

90).

At approximately 2:30 p.m. Robinson arrived at the side door

at 137 Arden Lane and rang the upper bell. Defendant came

downstairs, looked out the door’s window and, upon seeing and

recognizing Robinson, opened the door and stated, “Hey, Stick,

how you doing?” (T 1-63). Robinson had his gun drawn at this

point and, upon displaying his badge to defendant, stated “Doc,

this is business’ (T 1-63) and then entered the small hallway or

vestibule leading to the two apartments where he gave defendant

his Miranda rights. Although Robinson did not tell Holland that

he was under arrest, it is clear from Robinson's testimony that

ee

A-17

from this point in time Holland would not have been permitted to

leave the premises, make or receive any phone calls, or be alone

for even a moment in the apartment. Two government agents fol-

lowed Robinson's entry into the house by approximately twenty

seconds and they followed Robinson and Holland up to defend-

ant’s apartment where defendant was detained until approxi-

mately 6:00 p.m. when a search warrant had been secured and

brought to the premises.

The parties are in agreement that Holland was under arrest

from the time of the officers’ warrantless entry into his home. Un-

der the objective factors enumerated by the United States Su-

preme Court in Dunaway v. New York, 442 U.S. 200, 212-213

(1979), this conclusion by the parties is correct inasmuch as de-

fendant was not free to leave (T-166) or communicate with other

persons by telephone (T 1-118) and he remained under constan*

guard during the three and one-half hours of detention (T 1-104).

Defendant contends that Robinson lacked probable cause to

arrest him and that in any event the warrantless arrest at defend-

ant’s home violated the mandate of Payton v. New York, 445 U.S.

573 (1980), prohibiting a warrantless and nonconsensual entry

into a suspect's home to make a routine felony arrest absent exi-

gent circumstances. Defendant therefore asserts that both the al-

leged admissions made by him following the unlawful arrest and

the physical evidence seized from his person should be suppressed

as evidence under the “fruits of the poisonous tree’’ doctrine.

The Government has argued that probable cause existed for

Holland’s arrest and that Payton is inapplicable inasmuch as de-

fendant had been arrested at the doorway of the immediate hall-

way of the building in which defendant had his home or apart-

ment and, furthermore, that the common hallway of an

apartment building is not considered part of one’s home entitled

to the protections of Payton or the Fourth Amendment. I find un-

persuasive both of the Government's arguments regarding the in-

applicability of Payton to the facts of this case and therefore am

A-18

granting defendant’s motion to suppress the statements and evi-

dence obtained as a result of the arrest. As will be explained, de-

fendant Holland was in fact arrested in his home according to the

law in this circuit and the additional line of cases dealing with

warrantless arrests in apartment building hallways or lobbies is

inapposite to the instant circumstances.

Inasmuch as the Government has stated that it does not intend

to offer at trial the additional evidence seized pursuant to the

search warrant, it is unnecessary to decide the validity of such

warrant. However it is noted in passing that the warrant is tainted

by the inclusion in the attached affidavit by Agent Burke of the

illegally obtained admission by defendant and that, in view of the

absence of any other evidence establishing that defendant’s home

contained any contraband, the evidence obtained pursuant to

such warrant would have inevitably been suppressed.

Initially I find that there was in fact probable cause to arrest

Holland on the afternoon of February 4, 1983 and that, had the

Government obtained an arrest warrant or had defendant been

subdued outside of or as he had left his home, any evidence ob-

tained pursuant to a custodial search or proper interrogation

would have been admissible. Robinson possessed sufficient reli-

able information when defendant had opened the door to his

home to lead a reasonable person to believe that Holland had

committed the felony defined in 21 U.S.C. §841(a)(1) of distribut-

ing cocaine to Brown. The statement of Brown, corroborated by

the surveillance observations concerning Brown throughout the

day and particularly at Arden Lane (all of which had been con-

veyed to Robinson), when combined with Robinson’s personal

knowledge regarding defendant’s nickname and place of resi-

dence served to provide probable cause to arrest Holland. Cf.

United States v. Agapito, 620 F.2d 324, 333 (2d Cir.), cert. de-

nied, 449 U.S. 834 (1980). Defendant’s contention that Brown’s

statement was inherently unreliable and could not be utilized to

establish probable cause inasmuch as it was motivated by his de-

. tenting ota arin tad

ett

A-19

sire to curry favor with the Government is rejected due to the

strong corroborating surveillance observations indicating that

such statement was in fact truthful. Compare United States v. Ol-

iver, 626 F.2d 254, 261 (2d Cir. 1980).

Addressing the warrantless arrest of defendant at his home, the

Government has asserted two reasons why such arrest was not vi-

olative of Payton. First it is contended that Payton does not apply

when an arrest is made in a doorway rather than totally inside a

suspect’s home. The Government relies on United States v. Whit-

ten, 706 F.2d 1000 (9th Cir. 1983), wherein it was held that Pay-

ton was not violated where a defendant had been arrested imme-

diately after answering the police officers’ knock at the door to

such defendant’s hotel room. That court explained that a door-

way, “unlike the interior of a hotel room, is a public place.’’ 706

F.2d at 1015. However Whitten is not binding precedent on this

Court and, moreover, it is inconsistent with a decision of the

United States Court of Appeals for the Second Circuit, United

States v. Reed, 572 F.2d 412, cert. denied sub nom. Goldsmith v.

United States, 439 U.S. 913 (1978), wherein, faced with similar

facts, the Court found the warrantless arrest to be unconstitu-

tional.’ The Court explained:

“Here, we have little difficulty in determining that Reed

was arrested in a place in which she was entitled to a reason-

able expectation of privacy. Agent Bell testified that he

placed Reed under arrest in the living room-dining room

part of the apartment after advising her at the door that his

purpose was to place her under arrest. Reed testified that the

agents ‘rushed in’ immediately after she pulled the door

open and then arrested her. The district court believed that

Reed was arrested when she opened the door. No matter

which of these versions is the most accurate, Reed’s arrest

! The Second Circuit Court of Appeals’s reasoning regarding the unconstitu-

tional nature of a warrantless arrest at a suspect’s home, absent exigent cir-

cumstances, was found persuasive by the United States Supreme Court in

Payton, supra. at 588-589.

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was effected not in a ‘public’ place but in a place protected by

the Fourth Amendment. She was not arrested in the hallway

of the apartment building. Nor was she standing on the

threshold of her apartment in such a way that she would

have been inside the apartment by taking a step backward

and ‘outside’ by taking a step forward. She was not ‘as ex-

posed to public view, speech, hearing, and touch as if she

had been standing completely outside her house.’ United

States v. Santana, *** 427 U.S. [38, 42 (1976)] *** Rather,

she was arrested inside her home.” Id. at 422-423.

The Court further noted that the fact that the defendant therein

had opened the door to her apartment in response to the knock of

three armed federal agents did not operate ‘‘to eradicate her

Fourth Amendment privacy interest.’’ Jd. at 423 n.9.

“To hold otherwise would be to present occupants with an

unfair dilemma, to say the least — either open the door and

thereby forfeit cherished privacy interests or refuse to open

the door and thereby run the risk of creating the appearance

of an ‘exigency’ sufficient to justify a forcible entry. This

would hardly seem fair in situations that present no exigent

circumstances in the first place.”’ Ibid.

In the case at bar, although defendant’s initial opening of the

door to the building in which he had his residence was not the

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product of police deception’ or coercion, the government has not

attempted to advance the unacceptable argument that Holland

had consented to Robinson’s entry of the building for the pur-

poses of arresting him or “securing” the premises. Indeed the

heavy burden of establishing genuine consent can not be satisfied

where a person merely does not oppose an officer with his gun

drawn entering his or her home. Cf. United States v. Reed, supra,

at 423 n.9. See also United States v. Johnson, supra at footnote 2,

626 F.2d at 757 (defendant’s “invitation to the agents to enter af-

ter the door was opened was hardly voluntary in light of the coer-

cive effect of the weapons brandished by the agents’’).

Inasmuch as defendant was inside his home when Robinson

entered it without permission in order to effectuate the warrant-

less arrest, I find such arrest to be illegal as violative of Payton. As

recognized in United States v. McCool, 526 F.Supp. 1206, 1208

(M.D.Tenn. 1981), “[t]o uphold warrantless arrests at a person’s

home whenever law enforcement officers successfully obtain his

presence at a door too readily allows subversion of the Payton

principle.”

2 Admittedly there was a quantum of deception employed, possibly intention-

ally, by the government in that it was Robinson, expected by the government

to be recognized by Holland as a friend, who appeared by himself outside of

the exterior door and visible to one standing within the protection of the locked

door. See United States v. Johnson, 626 F.2d 753 (9th Cir. 1980), aff'd on other

grounds, 457 U.S. 537 (1982), wherein a warrantless arrest had been held to

have been illegal because the agents, having knocked on the door to Johnson’s

house, gave fictitious identifications whereupon Johnson opened his door to

drawn guns and was arrested. The instant deception, if any was intended —

and such intention has not been shown —, consisted of an agent who was a

friend of Johnson's but who was present at the door as a “‘non-friend”’ gaining

entrance due to the mantle or facade of amity. I find this not to rise to the ruse

intentionally utilized in Johnson or to have the deleterious effect accorded the

Johnson deception. The government’s ultization of Robinson as the “point

man” rather than another agent is qualitatively the same as the use by the

agents in United States v. Mason, 661 F.2d 45 (Sth Cir. 1982), of the company

of Mason's girl friend as they approached Mason’s home which probably

caused Mason to open his door and stand exposed in the doorway.

A-22

The Government has further not argued, nor could the evi-

dence which was presented warrant a finding, that there were exi-

gent circumstances in this case to justify a warrantless arrest of

defendant. Holland had no way of knowing that Brown had been

arrested many blocks away and therefore had no reason to at-

tempt to flee his home and the area. Indeed had the officers

merely “secured” the premises by watching the house while an

arrest warrant application was prepared and presented, they

could have properly arrested Holland without a warrant if he had

attempted to leave the building based upon the existence of proba-

ble cause for the felony arrest. It is further noted that when Ro-

binson approached the residence he had no knowledge that Hol-

land possessed additional cocaine or other contraband or that

Holland would have had any reason to destroy such evidence if he

did in fact possess such. See United States v. Campbell, 581 F.2d

22, 25 (2d Cir. 1978).

The Government additionally relies on United States v. Ma-

son, supra at footnote 2, wherein that defendant came to the front

door of his home and was arrested without a warrant by ap-

proaching agents. The court held that the arrest was valid based

upon United States v. Santana, supra, wherein a suspect was

standing in the open doorway of her home as the officers ap-

proached her. See 427 U.S. at 40. However it was noted in San-

tana that such defendant “was not merely visible to the public but

was as exposed to public view, speech, hearing and touch as if she

had been standing completely outside her house.” 427 U.S. at 42.

In view of the Second Circuit’s decision in United States v. Reed,

supra, and the Fifth Circuit’s failure to even mention Payton in its

opinion, I do not find United States v. Mason, to be dispositive or

persuasive in the case at bar. As noted in footnote 2, supra, Mason

“came to the front door”’ as the agents and Mason’s girlfriend ap-

proached, opening the door and voluntarily stepping into the

doorway thereby exposing himself to a Santana type situation. He

did not respond to an officer’s knock as in United States v. Reed

TT so a he st ee eal

A-23

or in the instant action. It is clear, however, in this circuit that a

person who opens his door in response to a police officer’s knock is

still considered to be inside his or her home for the purposes of

Fourth Amendment protections and that the mere act of opening

a door to one’s home in response to a knock or bell does not in of

itself lay one open to a warrantless felony arrest absent exigent

circumstances. See United States v. Reed, supra.

The Government has further contended that Payton is inappli-

cable because defendant was not arrested in his home but in the

common stairway or hallway leading to the entrances of the two

apartments. It relies on the line of cases in this circuit holding that

a common area or hallway in an apartment building, even if usu-

ally kept locked, is considered a public place not protected by the

Fourth Amendment. See, e.g., United States v. Moore, 463

F.Supp. 1266, 1270 (S.D.N.Y. 1979), and cases cited therein.

The Government’s position regarding the inapplicability of

Payton is incorrect for two reasons. First, the building at 137 Ar-

den Lane is not an apartment house in the normal sense and the

normally closed and locked door through which Robinson non-

consensually entered to arrest Holland gave access to only two

apartments (T 1-36, 1-64 & 1-65). Therefore each of the two ten-

ants exercised considerably more control over access to the vesti-

bule and common stairway leading to their respective living quar-

ters than would be the case in a multi-unit apartment house and

could reasonably be said to possess a greater expectation of pri-

vacy than would be true of tenants in a large apartment complex.

Accord, United States v. Fluker, 543 F.2d 709, 716 (9th Cir.

1976). Furthermore, the numerous decisions in this circuit hold-

ing that an apartment dweller’s Fourth Amendment protections

do not extend to a lobby or hallway in the building have consist-

ently taken note of the fact that the arresting or eavesdropping of-

ficers entered the building peaceably. In United States v. Penco,

612 F.2d 19 (2d Cir. 1979), the Court explained:

“Tt follows that there was no violation of appellant’s consti-

A-24

tutional rights by reason of the presence of the DEA agents

in the hallway outside the Duverglas apartment, in the

building stairwell, or in its garage, so long as they entered

peaceably.” 612 F.2d at 25.

See also United States v. Wilkes, 451 F.2d 938 (2d Cir. 1971);

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

393 U.S. 1032 (1969); United States v. Conti, 361 F.2d 153 (2d

' Cir. 1966), vacated on other grounds and case remanded, 390

U.S. 204 (1968); United States v. Miguel, 340 F.2d 812 (2d Cir.),

cert. denied, 382 U.S. 859 (1965).

In the case at bar Deputy Robinson’s entry into the stairwell

area to arrest defendant was not preceded by an invitation by ei-

ther of the building’s tenants but was attributable solely to the

drawn weapon, flashing badge and unwarranted assertion of le-

gal authority to be in such area to “secure” the premises. Even

were I to find (which I do not) that defendant did not possess a

reasonable privacy interest in the common area in question, the

forceful intrusion into such area to effectuate a warrantless arrest

cannot be legitimized by reliance on prior decisions permitting

peaceful police entries into apartment building lobbies or hall-

ways in order to effectuate proper arrests or to conduct surveil-

lance operations.

Inasmuch as Robinson’s entry into the building and his subse-

quent arrest of defendant were unlawful, the physical evidence

taken from defendant’s person cannot properly be classified or of-

fered as evidence obtained pursuant to a lawful arrest and must be

suppressed under the exclusionary rule. See Wong Sun v. United

States, 371 U.S. 471 (1963); Weeks v. United States, 232 U.S. 383

(1914). In addition the admissions allegedly made by defendant

within two to ten minutes after his arrest (T 1-70, 1-102) to Robin-

son and the other officers who illegally detained him as well as any

later admissions have not been shown to have been freely made by

defendant despite Robinson’s giving of the Miranda warnings fol-

lowing defendant’s arrest. The temporal proximity of the illegal

A-25

arrest and the admissions is apparent from the testimony given at

the suppression hearing and the Government has simply not met

its burden of demonstrating the lack of exploitation of the im-

proper arrest. See Dunaway v. New York, 442 U.S. 200 (1979);

Brown v. Illinois, 422 U.S. 590, 604 (1975).

In accordance with the foregoing defendant Holland’s motion

to suppress the physical evidence seized from his person on Febru-

ary 4, 1983 and the admissions he allegedly made on that date to

the arresting officers and other government agents was granted.

Dated: Buffalo, N. Y.

February 24, 1984

U.S. D. J.

A-26

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

vs. Cr. 83-26

MOSES HOLLAND C/A 84-1088

A certified copy of the mandate of the United States Court of

Appeals for the Second Circuit dated February 8, 1985, having

been filed in the office of the Clerk of this court on March 19,

1985, it is hereby,

ORDERED, ADJUDGED AND DECREED that said man-

date be, and hereby is, made the judgment of this court.

JOHN T. CURTIN

Chief United States District

Judge

Dated: March 21, 1985

HL ashes nat pM

A-27

—* Anited States Court of Appeals

for the

SECOND CIRCUIT MANDATE

At a stated Term of the United States Court of Appeals for the

Second Circuit, held at the United States Courthouse in the City

of New York, on the eighth day of February, one thousand nine

hundred and eighty-five.

Present:

HON. HENRY J. FRIENDLY

HON. ELLSWORTH A. VANGRAAFEILAND ~— (SEAL)

HON. JON 0. NEWMAN

Circuit Judges,

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

oe 84-1088

MOSE HOLLAND,

Defendant-Appellee.

Appeal from the United States District Court for the Western

District of New York.

This cause came on to be heard on the transcript of record from

the United States District Court for the Western District of New

York, and was argued by counsel.

A-28

ON CONSIDERATION WHEREOF, it is now hereby or-

dered, adjudged, and decreed that the order of said District Court

be and it hereby is reversed in accordance with the opinion of this

court.

(SEAL) A TRUE COPY Elaine B. Goldsmith

ELAINE B. GOLDSMITH Clerk

(signature) (signature)

CLERK Edward J. Guardaro

Deputy Clerk

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