2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-2-2011

USA v. Frank Correa

Precedential or Non-Precedential: Precedential

Docket No. 10-2199

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Recommended Citation

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 10-2199

______

UNITED STATES OF AMERICA

v.

FRANK CORREA,

 Appellant

______

 

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

______

 

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 
2

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

______

OPINION OF THE COURT

______

 

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 
3

expectation. Accordingly, Correa‟s suppression motion was 

properly denied. We will affirm. 

I.

In December 2007, the Essex County Fugitive Task 

Force1(“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. 
4

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 DefendantAppellant 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 
5

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-afirearm 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.
6

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 
7

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 
8

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). 
9

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.
10

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.