Appeal from an order of the United States District Court for the Western District of New York (Elfvin, J.) granting defendant's motion to suppress evidence. Reversed.
Friendly, Van Graafeiland, and Newman, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge :
This is an appeal by the Government from an order of the United States District Court for the Western District of New York (Elfvin, J.) suppressing certain evidence and oral admissions which followed appellee's warrantless arrest. Although the district court found that the arrest was based on probable cause, thus satisfying the requirement of United States v. Watson, 423 U.S. 411, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976), it held the arrest to be illegal under Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), because appellee was "inside his home" when the arrest took place. Disagreeing with this conclusion, we reverse.
Appellee is the tenant in the second floor apartment of a two-story house in Buffalo. Entry to the apartment is by means of a common hallway, which also serves the first floor apartment. It is not contended that appellee had any more than the customary easement of way in the common hallway, an easement which gave the occupants of the upstairs and downstairs apartments and their visitors the right to use the hallway. See Presby v. Benjamin, 169 N.Y. 377, 379, 62 N.E. 430 (1902); Federal Waste Paper Corp. v. Garment Center Capitol, Inc., 268 A.D. 230, 233-34, 51 N.Y.S.2d 26 (1st Dep't 1944), aff'd, 294 N.Y. 714, 61 N.E.2d 451 (1945); Swain v. Mizner, 74 Mass. 182 (1857).
On February 4, 1983, Deputy Sheriff James Robinson, who was participating with other officers in a drug bust, rang the bell for appellee's apartment at the ground floor entranceway to the common hallway. Appellee and Robinson were friends, or at least acquaintances, and appellee knew that Robinson was a police officer. When Robinson rang the bell, appellee left his second floor apartment, walked down a flight of stairs to the first floor, then down another flight of stairs to a hallway or vestibule leading to the outer door. Recognizing Robinson, he opened the door to him. The district court found that appellee was not induced to open the door as the result of police deception or coercion.
When the door was opened, Robinson drew his gun, displayed his badge and said, "Doc, this is business." From that time on, appellee's liberty of movement was restricted, and he could not reasonably have believed that he was free to leave. He was under arrest. See United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980); Henry v. United States, 361 U.S. 98, 103, 4 L. Ed. 2d 134, 80 S. Ct. 168 (1959); United States v. Thompson, 356 F.2d 216, 222 (2d Cir. 1965), cert. denied, 384 U.S. 964, 86 S. Ct. 1591, 16 L. Ed. 2d 675 (1966). The Government contends that the arrest was lawful, because appellee then "was as exposed to public view, speech, hearing, and touch as if [he] had been standing completely outside [his] house." United States v. Santana, 427 U.S. 38, 42, 49 L. Ed. 2d 300, 96 S. Ct. 2406 (1976); see United States v. Whitten, 706 F.2d 1000, 1015 (9th Cir. 1983), cert. denied, 465 U.S. 1100, 104 S. Ct. 1593, 80 L. Ed. 2d 125 (1984); United States v. Mason, 661 F.2d 45, 47 (5th Cir. 1981). We see no need, however, to treat this as a "threshold" case. Assuming that appellee's arrest took place in the vestibule or hallway, it nevertheless did not take place in appellee's "home".
Although the Supreme Court has accorded apartments and hotel rooms status as "homes" for Fourth Amendment purposes, it has never given the same status to adjoining common hallways. For example, in Miller v. United States, 357 U.S. 301, 2 L. Ed. 2d 1332, 78 S. Ct. 1190 (1958), where police officers forced their way into the defendant's basement apartment, the Court said that they "broke the door to invade his home." Id. at 314. In Johnson v. United States, 333 U.S. 10, 92 L. Ed. 436, 68 S. Ct. 367 (1948), where Johnson was arrested in her hotel room, the Court described the "entry to defendant's living quarters" as the beginning of the search. Id. at 13. In Ker v. California, 374 U.S. 23, 10 L. Ed. 2d 726, 83 S. Ct. 1623 (1963), Justice Brennan, one of the staunchest advocates of Fourth Amendment restraints, condemned only the "unannounced intrusion of the arresting officers into [petitioners'] apartment." Id. at 46 (Brennan, J., concurring in part and dissenting in part). In United States v. Reed, 572 F.2d 412 (2d Cir. 1978), where we announced this Court's disapproval of warrantless, non-exigent arrests inside a defendant's home -- in that case, an apartment -- we took special note of the fact that the arrest did not occur in the hallway. Id. at 423.
Congress, too, has recognized this common-sense distinction between places of abode, such as apartments, and common hallways. The short-lived National Prohibition Act, Pub. L. No. 46, 41 Stat. 305, 315 (1919), as supplemented by Pub. L. No. 96, 42 Stat. 222, 223 (1921), prohibited the warrantless search of a "private dwelling" and construed that term to include "the room or rooms used and occupied not transiently but solely as a residence in an apartment house, hotel, or boarding house."
In Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), Justice Stewart, writing for the majority, stated that "the Fourth Amendment cannot be translated into a general constitutional 'right to privacy.'" Id. at 350. Justice Harlan, concurring, said that the extent of Fourth Amendment protection generally is determined by reference to a place. Id. at 361. Consistent with this reasoning, the Court thereafter held that a suspect has no generalized right of privacy against a warrantless felony arrest based on probable cause, United States v. Watson, supra, 423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 but recognized the existence of a limited right of privacy against an arrest in the suspect's home, Payton v. New York, supra, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.
The expectation of privacy against warrantless felony arrests thus has reference to a place, United States v. Agapito, 620 F.2d 324, 331 (2d Cir.), cert. denied, 449 U.S. 834, 101 S. Ct. 107, 66 L. Ed. 2d 40 (1980), and will be violated only if the place is one that the defendant has the right to keep private and subject to his exclusive control. See Rakas v. Illinois, 439 U.S. 128, 149, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978); United States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1978); United States v. Williams, 565 F. Supp. 353, 361-62 & n.15 (N.D. Ill. 1983). Accordingly, it is the established law of this Circuit that the common halls and lobbies of multi-tenant buildings are not within an individual tenant's zone of privacy even though they are guarded by locked doors. See, e.g., United States v. Martinez-Gonzalez, 686 F.2d 93, 101-02 (2d Cir. 1982); United States v. Arboleda, 633 F.2d 985, 991-92 (2d Cir. 1980), cert. denied, 450 U.S. 917, 67 L. Ed. 2d 343, 101 S. Ct. 1362 (1981); United States v. Penco, 612 F.2d 19, 24-25 (2d Cir. 1979); United States v. Corcione, 592 F.2d 111, 118 (2d Cir.), cert. denied, 440 U.S. 975, 99 S. Ct. 1545, 59 L. Ed. 2d 794 (1979); United States v. Wilkes, 451 F.2d 938, 941 n.6 (2d Cir. 1971); United States v. Llanes, 398 F.2d 880, 883-84 (2d Cir. 1968), cert. denied, 393 U.S. 1032, 89 S. Ct. 647, 21 L. Ed. 2d 576 (1969); United States v. Conti, 361 F.2d 153, 157 (2d Cir. 1966), vacated on other grounds, 390 U.S. 204, 88 S. Ct. 899, 19 L. Ed. 2d 1035 (1968); United States v. Miguel, 340 F.2d 812, 814 (2d Cir.), cert. denied, 382 U.S. 859, 86 S. Ct. 116, 15 L. Ed. 2d 97 (1965); United States v. Moore, 463 F. Supp. 1266, 1270 (S.D.N.Y. 1979); United States v. St. Clair, 240 F. Supp. 338 (S.D.N.Y. 1965).
Moreover, we never have held that the common areas must be accessible to the public at large nor have we required a quantified amount of daily traffic through the area as a basis for determining that a common area is beyond an individual's protected zone of privacy. See United States v. Corcione, supra (hallway outside second-story apartment in two story, two-apartment house); United States v. Arboleda, supra (fire escape); United States v. Wilkes, supra (hallway outside ground floor apartment in New York City brownstone); United States v. Llanes, supra (hallway outside rear ground floor apartment). See also Polk v. United States, 314 F.2d 837 (9th Cir. 1963) (per curiam) (outside stairway serving first and second floor flats), cert. denied, 375 U.S. 844, 84 S. Ct. 96, 11 L. Ed. 2d 72 (1963).
This rule gives tenants the benefit of much-needed police protection in common hallways, People v. Capone, 35 Misc. 2d 1071, 1074, 232 N.Y.S.2d 3 (1962), while it preserves for them the privacy of their actual places of abode, their apartments. It also lays down a clearly-defined boundary line for constitutionally permissable police action, which is readily apparent to an officer in the field, without a need for counting apartments, analyzing common-hallway traffic patterns or interpreting the mental processes of a suspect relating to an area used in common with others. In addition to protecting the public against the untoward effect of a "constable's blunder," it protects the "constable" against potential civil liability under 42 U.S.C. § 1983 resulting from an erroneous determination as to whether the door to a tenant's "home" is his apartment door or a door at the other end of a common hallway. See Segura v. United States, 468 U.S. 796, 82 L. Ed. 2d 599, 104 S. Ct. 3380, 52 U.S.L.W. 5128, 5132 (1984). We see no reason why the rule should not be applied in the instant case.
In passing along the common ways in his building on any given day, including the day of his arrest, appellee reasonably might expect to meet the landlord or his agents, the occupants of the first floor apartment, deliverymen, tradesmen, or one or more visitors to the first floor apartment. See United States v. Eisler, supra, 567 F.2d at 816; United States v. Anderson, 175 U.S. App. D.C. 75, 533 F.2d 1210, 1214 (D.C. Cir. 1976). He had no right to exclude them from the common hallway, and there is no indication that he ever tried to do so. In United States ...