Appeal from a judgment of the District Court for the Eastern District of New York, Thomas C. Platt, Jr., Judge, convicting defendant, after a jury trial, under an indictment charging one count of criminal possession of 94 grams of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841, on the ground that the court erred in denying a suppression motion. Affirmed.*fn*
Before Friendly, Mulligan and Oakes, Circuit Judges.
This appeal is from a judgment of the District Court for the Eastern District of New York, Thomas C. Platt, Jr., Judge, convicting defendant, after a jury trial, under an indictment charging one count of criminal possession of 94 grams of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841. The sole ground urged for reversal is the court's refusal to suppress the evidence seized and the statements made by the defendant at the time of his arrest in his apartment at 51-55 Van Kleck Avenue, Elmhurst, Queens, New York.
The circumstances surrounding the arrest of Arboleda and the seizure of the highly damaging evidence were elicited at a pre-trial 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,*fn1 climbed over the fence of the fire escape to a two-foot ledge and made his way along it, with the purpose of preventing "the possible escape of Gilberto Arboleda whom we believed may have been in the apartment." Bisbee testified that he glanced into the windows of the apartment as he proceeded, but that he could not see into it because the blinds were drawn. The kitchen window blinds were "maybe halfway up"; Bisbee's glance only permitted him to make out that the room was a kitchen. The trial court found that at the prearranged time of the signal Bisbee heard a banging noise.*fn2 The court described what then happened as follows:
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 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.
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.*fn3 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,*fn4 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 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, 548 F.2d 528, 533 (5 Cir.), cert. denied, 431 U.S. 932, 97 S. Ct. 2640, 53 L. Ed. 2d 249, 434 U.S. 954, 98 S. Ct. 479, 54 L. Ed. 2d 312 (1977). See United States v. Morin, 378 F.2d 472, 475 (2 Cir. 1967); cf. United States v. Masterson, 383 F.2d 610, 614 (2 Cir. 1967), cert. denied, 390 U.S. 954, 88 S. Ct. 1048, 19 L. Ed. 2d 1147 (1968) (F.R.Cr.P. 41(e)). The movant can shift the burden of persuasion to the Government and require it to justify its search, however, when the search was conducted without a warrant. United States v. Mapp, 476 F.2d 67, 76 (2 Cir. 1973). 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.).*fn5 Arboleda cannot, therefore, rely on the lack of a search warrant to shift the burden to the Government.
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, 548 F.2d at 533, the court stated that:
(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, 578 F.2d 1058, 1067 & n. 6 (5 Cir. 1978) (en banc) ("it is incumbent upon the party moving to suppress evidence to demonstrate lack of authority for its acquisition"). Cf. United States v. Diezel, 608 F.2d 204, 207 (5 Cir. 1979) (voluntariness of confession). Arboleda did not make the showing necessary to call upon the Government to adduce evidence of a warrant for Gilberto's arrest which, as he concedes, ...