Before Friendly, Mulligan and Oakes, Circuit Judges.
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, 581 F.2d 305, 310 (2 Cir. 1978); United States v. Braunig, 553 F.2d 777, 780 (2 Cir. 1977), we prefer to rest our decision on the adequate and independent ground developed in Part II of the opinion. When Oscar Arboleda, in his own words, "tossed" the aluminum foil package "out the window", he abandoned any reasonable expectation of privacy. See Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 2561, 65 L. Ed. 2d 633 (1980). The dissent concedes that if the package had come to rest when it hit the fire escape, the defendant would have been "out of luck". 997 n. 5. Fourth Amendment protections did not spring back into force when the package fell from the fire escape to the ledge.
The petition for rehearing is denied.
On Petition for Rehearing
OAKES, Circuit Judge (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 warrantless 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, 403 U.S. 443, 466, 91 S. Ct. 2022, 2038, 29 L. Ed. 2d 564 (1971).