Lead Opinion
This appeal is from a judgment of the District Court for the Eastern District of
The circumstances surrounding the arrest of Arboleda and the seizure of the highly damaging evidence were elicited at a pretrial 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 testimony 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,
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 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*988 defendant then took another package of clear plastic containing white power, 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 Detective 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.
I.
In the district court Arboleda, 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 ,99 S.Ct. 283 ,58 L.Ed.2d 259 (1978), now reinforced by Payton v. New York,445 U.S. 573 ,100 S.Ct. 1371 ,63 L.Ed.2d 639 (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” exception recognized in Reed, id. at 418, 424.3 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,4 see United 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.,91 S.Ct. 2022 ,29 L.Ed.2d 564 (1971), since the circumstances were exigent and the discovery inadvertent. 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 ,89 S.Ct. 647 ,21 L.Ed.2d 576 (1969), and*989 United States v. Penco,612 F.2d 19 , (2 Cir. 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 ,91 S.Ct. at 2037-2038 .
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,
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,
[I]n 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 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,
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 bur
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 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 argument between trial and appeal — a change so great as to 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.
While this is a sufficient basis for affirmance, there is another. In Rakas v. Illinois,
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,
Bisbee’s testimony, however, suggests that the package fell short of the area where the fire escape 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.”
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,
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,
In a modern urban multifamily apartment house, the area within the “curti-lage” is necessarily much more limited than in the case of a rural dwelling subject to one owner’s control. ... In such an apartment house, 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,
Finally, any distinction between the ledge and the fire escape for Fourth Amendment purposes would be irrational. The fire escape 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 andifor that stated in Part II of this opinion, the judgment of conviction is affirmed.
Notes
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 ap
. Despite the designation 3 H the clear testimony of Detective Bisbee was that the apartment was on the second floor.
. Officer Flores denied that he or Officer Gross had yet banged.
. 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,
. 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 event Bisbee’s choice of 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.
. 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,
. 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 un-contradicted 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,
. 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.
Dissenting Opinion
(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’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 ap
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,
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 justification? To be sure,
The unfairness is made worse here because of the implied Fourth Amendment 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 ,97 S.Ct. 1123 ,51 L.Ed.2d 549 ,430 U.S. 983 ,97 S.Ct. 1679 ,52 L.Ed.2d 377 (1977); United States v. McKinney,379 F.2d 259 , 263 (6 Cir. 1967) (McCree, J.).
Majority op. at 989. 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 wa.s 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,
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 also exigent circumstances. See Government of Virgin Islands v. Gereau,
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.
My third reason is that this circuit apparently went even further in United States v. Reed,
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.
At one time the answer to this question would have depended on whether the ledge outside appellant’s apartment was “curti-lage,” 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,
The nutshell elaboration of the concept, as expressed in Katz, is that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,”
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 v. 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 991. But access from the fire escape, separated from the two-foot-wide ledge by a three-foot fence, over which Detective Bisbee had 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,
Nor is it very important that the general ledge area was visible from th’e' 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.
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,
I would accordingly reverse.
. The question would be “Do you claim you were on the ledge by virtue of any warrant to arrest or search?”
. As added ammunition, the majority notes at footnote 5 that counsel “conceded that the appeal should be dismissed if there was an arrest warrant for Gilberto.” Majority op. at 989. 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.
. 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 ttje 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 pur
In response to' this point, the majority argues that the announcement requirement applies only to buildings, whereas the 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.” It is the latter factor that controls the applicability of the announcement requirement. See United States v. Fluker,
. 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 991. Leaving aside its entirely unsupported assumption about appellant’s intent, this passage suggests incorrectly 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,
. 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 991, 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.
. United States v. Anderson,
Lead Opinion
Appellant has filed a petition for rehearing in which he alleges, inter alia, that an oral communication 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 opportunity 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,
The petition for rehearing is denied.
Dissenting Opinion
(dissenting):
I adhere to my previous opinion and therefore dissent from the denial of rehearing and affirmance of the judgment on the second alternative ground advanced in the original opinion. I take it that the majority’s 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 Government 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 warrant-less arrest or search. See at 993 (Oakes, J., dissenting).
As for the alternative ground-that Arboleda abandoned 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,
I would still reverse.