965 F.2d 1248 (3rd Cir. 1992), 91-2071, United States v. Acosta

Docket Nº:91-2071 to 91-2073.
Citation:965 F.2d 1248
Party Name:UNITED STATES of America, Appellant, v. Jose ACOSTA a/k/a
Case Date:May 27, 1992
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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965 F.2d 1248 (3rd Cir. 1992)

UNITED STATES of America, Appellant,


Jose ACOSTA a/k/a "Jose Diaz", "Agapito Velazquez".

UNITED STATES of America, Appellant,


Manuel ACOSTA.

UNITED STATES of America, Appellant,


Martha OVALLE.

Nos. 91-2071 to 91-2073.

United States Court of Appeals, Third Circuit

May 27, 1992

Argued Feb. 14, 1992.

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Michael M. Baylson, U.S. Atty., Walter S. Batty, Jr., Linwood C. Wright, Jr., Melissa H. Maxman (argued), Asst. U.S. Attys., Office of the U.S. Atty., Philadelphia, Pa., for appellant.

Richard A. Shore, Law Offices of Richard A. Shore, Philadelphia, Pa., for appellee, Jose Acosta.

Howard D. Popper, Popper & Yatvin, Philadelphia, Pa., for appellee, Manuel Acosta.

Alan L. Yatvin (argued), Popper & Yatvin, Philadelphia, Pa., for appellee, Martha Ovalle.

Before: GREENBERG, COWEN and SEITZ, Circuit Judges.


SEITZ, Circuit Judge.


This case resulted when members of the Drug Enforcement Agency ("DEA"), the

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Bureau of Alcohol, Tobacco, and Firearms and the Philadelphia police joined forces to arrest 63 individuals for drug marketing crimes. A team of five law enforcement officers, led by DEA Agent Allen, (collectively referred to as "officers") were directed to execute a warrant for the arrest of Carlos Santiago. The arrest warrant did not identify Santiago's residence. However, it was in an envelope that gave three possible addresses. The first was 522 West Venango Street in Philadelphia.

When the officers arrived at 522 West Venango Street at 6:00 a.m., they discovered that the address was for a three story, multi-unit apartment building located at the corner of West Venango and Randolph Streets. A side door of the building faced Randolph Street and permitted access to the apartments.

The officers questioned several passersby to see if anyone recognized Santiago's photograph. None of those questioned recognized him. The officers then decided to approach the building at its side entrance on Randolph Street and to look for Santiago by starting with the first floor apartment. Special Agent Allen, the arrest team leader, instructed two officers to "cover the back" of the building in case Santiago was within and tried to escape. One of these two officers, Special Agent DeProsperis, climbed a fence enclosing the backyard on the Randolph Street side and positioned himself in the yard. The record does not disclose where the second officer was located.

After Agent Allen rang at least one of the doorbells on the outside to no avail, the officers found that the outside door was unlocked. Agent Allen, accompanied by the other officers at the front door, entered through that door into a hallway and knocked on the first floor apartment door. Allen announced that they were the police, that he had a warrant and ordered the occupants to open the door. Thereafter the officers heard "scuffling" and "commotion" from within, as well as the sound of a toilet flushing. At about the same time, Agent Allen heard Agent DeProsperis yell from the backyard that the occupants were throwing "stuff" from the window into the backyard. Agent Allen understood the word "stuff" to be a street term for drugs. He and another officer reacted by breaking down the door and entering the apartment.

The officers found Jose Acosta, Manuel Acosta and Martha Ovalle ("defendants") inside. 1 They recovered drugs and paraphernalia that were in plain view in the bedroom and proceeded to conduct a protective sweep. The sweep revealed weapons, large sums of cash, and additional drugs and drug paraphernalia inside the apartment. Similar evidence of drugs was recovered in the yard outside of the bathroom window. Santiago was not on the premises. After obtaining a search warrant two days later, the police acquired additional evidence on the premises.

Defendants were indicted for conspiracy to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1) and 846, and aiding and abetting with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Additionally, Jose Acosta was charged with violation of 18 U.S.C. § 924(c)(1) for the knowing and willful use of a firearm in relation to drug trafficking.

Defendants moved under Federal Rules of Criminal Procedure 12(b)(3) and 41(f) to suppress the evidence gained as a result of the allegedly unlawful search and seizure. 2 After two hearings, the court ruled in open court that it would grant defendants' motions to suppress based on its conclusion that the search violated defendants' Fourth

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Amendment rights. 786 F.Supp. 494 (E.D.Pa.1992). The government appeals. The district court had jurisdiction under 18 U.S.C. § 3231, while we have jurisdiction pursuant to 18 U.S.C. § 3731.


The district court sketched its conclusions in its recorded oral ruling. It did not point to any dispute of material historic fact and we cannot find on the record any such dispute. In addressing the arguments of the parties, we will rely on the record in narrating the historic facts. 3 Review of a district court's legal conclusions is plenary.

We turn, at the outset, to the language of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, 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 persons or things to be seized.

U.S. Const. amend. IV. The warrant requirement guarantees our people the right of freedom from unwarranted government intrusion. Payton v. New York, 445 U.S. 573, 585-86, 100 S.Ct. 1371, 1379-80, 63 L.Ed.2d 639 (1980). It affords reasonable protection by permitting only a neutral and detached magistrate to review evidence and draw inferences to support the issuance of a search warrant. Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 (1948). Thus, a basic principle of Fourth Amendment law is that warrantless searches and seizures inside a home are presumptively unreasonable. Payton, 445 U.S. at 586, 100 S.Ct. at 1380. We proceed to the merits with these rules in mind.

A. The Entry into the Apartment Building

Defendants do not suggest that the arrest warrant was invalid. However, they do assert at the outset that the warrant did not authorize the entry into the apartment building to inquire about Santiago. Their argument is based upon the assertion that the hallway outside their apartment, in which they had an easement of access, was within their zone of privacy protected by the Fourth Amendment. They say that the illegal entry into the hallway constitutes an alternative basis to support a decision suppressing the evidence, although such an argument was rejected by the district court.

The government does not argue that the entry into the hallway was justified by the arrest warrant. Rather, it maintains that under the established facts and law, the defendants' privacy rights did not extend to the hallway. Thus, it contends that the officers' entry into the hallway was constitutional. The first issue, therefore, is whether defendants' Fourth Amendment interests extended to the hallway, rendering the officers' entry illegal.

The district court held that the officers were entitled to enter the building. In reaching its conclusion, it explicitly adopted the reasoning of United States v. Holland, 755 F.2d 253 (2d Cir.), cert. denied, 471 U.S. 1125, 105 S.Ct. 2657, 86 L.Ed.2d 274 (1985). The defendant in Holland resided in a second floor apartment in a two-story house. The inner hallway served both the first and second floor apartments. The defendant was arrested when, in response to the doorbell, he went down to the outer door and opened it.

The court in Holland held that the arrest, which took place while defendant stood in the open doorway, did not occur within the defendant's zone of privacy. It came to this conclusion for three reasons. First, it analyzed cases in which the Supreme Court considered invasions of privacy involving apartments and hotels. Although the actual rooms occupied by the defendants in those cases were accorded the same protected status as single family homes, the Court consistently spoke of entries,

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intrusions and invasions taking place at the doors of the living quarters. Holland, 755 F.2d at 255 (citing e.g., Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) (police invaded home when they broke the inner basement apartment door); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (search began when officers entered the individual hotel rooms)). The Holland court also supported its "common sense" conclusion by reference to Congress' conception of a home in the National Prohibition Act, Publ. L. No. 66, 41 Stat. 305, 315 (1919), which prohibited warrantless searches in "private dwellings." This Act defined "dwellings" to include "the room or rooms used and occupied not transiently but solely as a residence in an apartment house, hotel, or boarding house."

Secondly, citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the court concluded that only when the defendant has the right to keep a place private and subject to his exclusive control would reasonable expectations of privacy attach. Holland, 755 F.2d at 255. The defendant in Holland did not have the right to exclude others, nor did the record indicate that he had ever attempted to do so. Thirdly, the court noted that a rule designating commons...

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