PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-2199
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UNITED STATES OF AMERICA
v.
FRANK CORREA,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Nos. 08-cr-00239-001 and 09-cr-00889-001)
District Judge: Honorable Joseph H. Rodriguez
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Argued on June 23, 2011
Before: BARRY, AMBRO, and VAN ANTWERPEN,
Circuit Judges
(Filed: August 2, 2011)
Edward F. Borden, Jr. [ARGUED]
Earp Cohn P.C.
20 Brace Road, Fourth Floor
Cherry Hill, NJ 08034
Counsel for Appellant
George S. Leone
Norman Gross [ARGUED]
Camden Federal Building and U.S. Courthouse
401 Market Street, Fourth Floor
Camden, NJ 08101-2098
Counsel for Appellee
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OPINION OF THE COURT
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VAN ANTWERPEN, Circuit Judge.
A Task Force searching for an escaped fugitive entered
the common areas of a multi-unit apartment building. The
building had a locked exterior door, and an inspector entered
through a partially opened side window. Once inside, the
Task Force apprehended Defendant-Appellant Frank Correa
in a common-use stairwell, and, after a struggle, Correa
informed the inspector he had a firearm. The inspector
retrieved the firearm from Correa‟s pocket. Correa moved to
suppress the firearm and the statement he made to the
inspector as fruit of an illegal seizure. The District Court
denied the motion. We previously held in United States v.
Acosta, 965 F.2d 1248, 1252 (3d Cir. 1992), that a resident of
an unlocked multi-unit apartment building lacks an
objectively reasonable expectation of privacy in the
building‟s common areas. We determine today that the
presence of a locked exterior door does not alter that
2
expectation. Accordingly, Correa‟s suppression motion was
properly denied. We will affirm.
I.
In December 2007, the Essex County Fugitive Task
1
Force (“Task Force”) was searching for Jose Espinosa, an
escaped inmate from Union County Jail. The Task Force
learned that two of Espinosa‟s known associates, Luis Luna
and James Romero, were at 41 Elm Street in Elizabeth, New
Jersey. Both Luna and Romero had outstanding arrest
warrants, plus criminal histories including drug dealing and
firearm possession.
In the early morning hours of December 19, 2007, the
Task Force prepared to execute the arrest warrants on Luna
and Romero. The Task Force was equipped with firearms,
handcuffs, and bulletproof vests. The Task Force arrived at
41 Elm Street, a multi-unit apartment building. The front
entrance to the building was locked. A sign posted outside
the front entrance read, in English and Spanish, “[N]o visitors
are permitted in this building unless []accompanied by a
resident, anyone not accompanied . . . by a resident will be
prosecuted as a trespasser.” Appx. 71a.
1
The Essex County Fugitive Task Force
included members of the Essex County Sheriff‟s
Office and the Union County Sheriff‟s Office, as well
as FBI agents and United States Marshals Service
deputies.
3
Although the building‟s front entrance was locked,
Inspector Marshal Daniel R. Potucek was able to climb
through a partially open window into a common stairwell area
inside the building. Once inside, Inspector Potucek opened
the building‟s front entrance and let in the rest of the Task
Force. The Task Force members positioned themselves in the
first-floor hallway.
Shortly after entering the building, at approximately
2:00 a.m., the Task Force members heard male voices coming
up a common stairwell from the basement. The Task Force
members surrounded the entrance to the stairwell and
encountered three men: Luna, Romero, and Defendant-
Appellant Frank Correa. The Task Force members identified
themselves to the three men and ordered them to get on the
ground. Luna and Romero were immediately recognized
from photographs and secured. After a short struggle,
Inspector Potucek secured Correa, and Correa informed
Inspector Potucek that he had a gun. Inspector Potucek
retrieved a loaded firearm from Correa‟s front pocket.
On March 27, 2008, a Grand Jury indicted Correa,
charging him with unlawful possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g). Correa
pled not guilty and moved to suppress the firearm as fruit of
an illegal seizure. The District Court held a hearing on
Correa‟s suppression motion on October 15, 2008 and denied
the motion on April 9, 2009. United States v. Correa, 635 F.
Supp. 2d 379 (D.N.J. 2009).
On November 30, 2009, the District Court granted
Correa‟s motion to dismiss the indictment due to violations of
4
the Speedy Trial Act, 18 U.S.C. § 3162.2 The next day,
December 1, 2009, Correa was indicted on the same charges.
At arraignment on December 10, 2009, Correa‟s counsel
confirmed the District Court‟s previous denial of Correa‟s
suppression motion and agreed to incorporate the prior record
into the new indictment.
On January 20, 2010, after a bench trial, the District
Court convicted Correa on the felon-in-possession-of-a-
firearm charge. On April 21, 2010, the District Court
sentenced Correa to 100 months‟ imprisonment followed by
three years‟ supervised release. Correa timely appealed on
April 22, 2010.
II.
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C.
§ 1291. “We review the district court‟s denial of [a] motion
to suppress for clear error as to the underlying facts, but
exercise plenary review as to its legality in light of the court‟s
properly found facts.” United States v. Kennedy, 638 F.3d
159, 163 (3d Cir. 2011) (quotation marks omitted). The
proponent of a motion to suppress bears the burden of
establishing that his Fourth Amendment rights were violated.
Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978); United States
v. Stearn, 597 F.3d 540, 551 (3d Cir. 2010).
III.
2
The indictment was dismissed without
prejudice. Correa does not dispute the District Court‟s
dismissal without prejudice. Correa Br. 1 n.1.
5
A defendant must have standing to invoke the Fourth
Amendment‟s exclusionary rule. Stearn, 597 F.3d at 551; see
also Minnesota v. Olson, 495 U.S. 91, 95 (1990) (“[C]apacity
to claim the protection of the Fourth Amendment depends . . .
upon whether the person who claims the protection of the
Amendment has a legitimate expectation of privacy in the
invaded place.” (quotation marks omitted)). “Fourth
Amendment standing requires that the individual challenging
the search have a reasonable expectation of privacy in the
property searched . . . and that he manifest a subjective
expectation of privacy in the property searched[.]” Kennedy,
638 F.3d at 163 (quotation marks omitted); see Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
Regarding the objective prong, “we inquire whether the
individual‟s expectation of privacy is „one that society is
prepared to recognize as reasonable.‟” Bond v. United States,
529 U.S. 334, 338 (2000) (quoting Smith v. Maryland, 442
U.S. 735, 740 (1979)). Regarding the subjective prong, “we
ask whether the individual, by his conduct, has exhibited an
actual expectation of privacy; that is, whether he has shown
that „he [sought] to preserve [something] as private.‟” Id.
With these concepts in mind, we now turn to the case before
us.
Correa argues that the Task Force violated his Fourth
Amendment rights by unlawfully entering the common areas
of a locked, multi-unit apartment building and seizing him.
Thus, according to Correa, his firearm and statements must be
suppressed as fruit of an unlawful seizure. We disagree.
Correa did not have Fourth Amendment standing to
challenge this search because he lacked an objectively
reasonable expectation of privacy in the common areas of a
6
multi-unit apartment building with a locked exterior door.3 In
Acosta, we held that a resident of a multi-unit apartment
complex lacks an objectively reasonable expectation of
privacy in the common areas of the multi-unit apartment
complex, at least where the exterior door is unlocked. 965
F.2d at 1253. We now extend Acosta and join a number of
other Circuit Courts of Appeals in holding that a resident
lacks an objectively reasonable expectation of privacy in the
common areas of a multi-unit apartment building with a
locked exterior door. United States v. Nohara, 3 F.3d 1239,
1242 (9th Cir. 1993); United States v. Concepcion, 942 F.2d
1170, 1172 (7th Cir. 1991); United States v. Barrios-Moriera,
872 F.2d 12, 14-15 (2d Cir. 1989), abrogated on other
grounds by Horton v. California, 496 U.S. 128, 130 (1990);
United States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977); see
also United States v. Miravalles, 280 F.3d 1328, 1333 (11th
Cir. 2002) (no reasonable expectation of privacy in common
areas of high-rise apartment building where front door had an
“undependable lock that was inoperable on the day in
question”).4
3
As noted, to have Fourth Amendment
standing, the proponent of a motion to suppress must
prove he had both an objectively reasonable
expectation of privacy and an actual, subjective
expectation of privacy. Because we determine that
Correa lacked an objectively reasonable expectation of
privacy, we need not consider whether he proved a
subjective expectation of privacy.
4
The First Circuit has not yet addressed locked
apartment buildings, but has held that “„a tenant lacks
a reasonable expectation of privacy in the common
7
Moreover, we think Correa lacked a reasonable
expectation of privacy in the building‟s common areas
because he did not have control over these areas. After all,
“[a]n expectation of privacy necessarily implies an
expectation that one will be free of any intrusion, not merely
unwarranted intrusions.” Eisler, 567 F.2d at 816. Here, any
resident in the multi-unit apartment building could admit
guests, delivery people, repair workers, postal carriers,
custodians, and others into the common areas of the
apartment building. See Miravalles, 280 F.3d at 1332;
Nohara, 3 F.3d at 1242. Additionally, the purpose of the
locked front door was to “provide security to the occupants,
not privacy in common hallways.” Id. Finally, residents
benefit from police protection in these common areas. United
States v. Holland, 755 F.2d 253, 256 (2d Cir. 1985). Given
the plethora of individuals who could access the common
areas of the locked multi-unit apartment building and
Correa‟s inability to control these areas, Correa “could not
areas of an apartment building.‟” United States v.
Rheault, 561 F.3d 55, 59 (1st Cir. 2009) (quoting
United States v. Hawkins, 139 F.3d 29, 32 (1st Cir.
1998)).
To our knowledge, the only Court of Appeals
case holding that a resident has a reasonable
expectation of privacy in the common areas of a
locked apartment building is United States v. Carriger,
541 F.2d 545 (6th Cir. 1976), but the Sixth Circuit has
limited this outlier case. See United States v. Dillard,
438 F.3d 675, 683 (6th Cir. 2006) (recognizing that
other circuits have “explicitly reject[ed]” Carriger and
declining “to step further outside the mainstream” by
extending Carriger).
8
have reasonably expected [his] privacy to extend beyond [his]
apartment door.” Acosta, 965 F.2d at 1252.
Finally, we reiterate that Fourth Amendment standing
turns on legitimate expectations of privacy and not – as
Correa argues – on concepts of property-law trespass. See
United States v. Cruz Pagan, 537 F.2d 554, 558 (1st Cir.
1976) (finding no reasonable expectation of privacy in an
apartment complex‟s common areas and noting that
“[w]hether or not the agents‟ entry was a technical trespass is
not the relevant inquiry”). Indeed, many places designated as
“private” by the common law of property do not garner
Fourth Amendment protection because they have been
knowingly exposed to public view and lose a legitimate
expectation of privacy. See California v. Ciraolo, 476 U.S.
207, 212-14 (1986) (curtilage observable from public airspace
not entitled to Fourth Amendment protection); United States
v. Santana, 427 U.S. 38, 42 (1976) (dwelling‟s threshold is
“public”). Here, the common areas of the apartment building
are similarly “public” spaces and not entitled to Fourth
Amendment protection. Correa‟s argument that the Task
Force violated his Fourth Amendment rights by trespassing in
the common areas of the locked, multi-unit apartment
building misses the mark. The relevant question is whether
Correa had an objectively reasonable expectation of privacy
in the common areas. For the reasons discussed, he did not.
Therefore, no Fourth Amendment violation occurred, and we
will affirm.
9
We have considered Correa‟s other arguments and find
them unavailing.5
IV.
We conclude that a resident lacks an objectively
reasonable expectation of privacy in the common areas of a
locked, multi-unit apartment building. Therefore, we will
affirm the District Court‟s denial of Correa‟s suppression
motion. We also affirm Correa‟s conviction and sentence.
5
Correa contends that the Task Force violated
his Fourth Amendment rights under Payton v. New
York, 445 U.S. 573 (1980), and Steagald v. United
States, 451 U.S. 204 (1981). However, neither Payton
nor Steagald applies to this case. As we said in United
States v. Veal, “Payton requires that officers have a
reasonable belief the arrestee (1) lived in the residence,
and (2) is within the residence at the time of entry.”
453 F.3d 164, 167 (3d Cir. 2006) (quotation marks
omitted). But here, the Task Force entered the
common areas of a locked, multi-unit apartment
building, not a residence. Similarly, Steagald holds
that, absent exigent circumstances, law enforcement
officers with an arrest warrant may not enter a third
party‟s home to search for the subject of the arrest
warrant. 451 U.S. at 213-14. But the Task Force
entered the common areas of an apartment building,
not a home.
10