Breaking and associated brands will be offline for scheduled maintenance Friday Feb. 26 9 PM US EST to Saturday Feb. 27 6 AM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Police officers on a stakeout of an alleged drug dealer’s apartment acted reasonably when they used the entry of a food delivery person through the front door to observe, and then seize, the occupants inside, the 2nd U.S. Circuit Court of Appeals ruled Wednesday. A sharply divided court found that the occupants of a “known stash house” had “voluntarily exposed themselves to public view” when they accepted the takeout food delivery and “had no reasonable expectation of privacy against being seen by persons standing in a public hallway.” In United States v. Gori, 9-1568, the panel, in a decision by Judge Dennis G. Jacobs, reversed a lower court’s suppression of two kilograms of cocaine, as well as subsequent statements that defendants made to the police. The panel also found that a warrant was unnecessary and that the seizure and subsequent search of the apartment were reasonable under the circumstances. In a dissent, however, Judge Sonia Sotomayor said the majority had reached an “extraordinary result” by holding that the expectation of privacy of a person inside his home with the door open is the same as that of a person standing on a public street. When Pedro Mora was arrested holding a kilogram of cocaine on Oct. 12, 1998, he led police to an apartment building where they observed Julio Gori and Sorin Pichardo walking inside. Mora telephoned Gori, who promptly walked outside with a black bag containing two kilograms of cocaine for Mora. Gori was arrested by the police. Two officers then went inside the building and waited in the hallway outside of apartment 1M. And when a woman delivering food to the apartment knocked on the door, the officers stood to either side of her, with guns drawn. The door opened, and the two officers immediately ordered into the hallway the occupants — two men, one of whom was the owner of the apartment, Victor Rosario, two women, and a child. Pichardo then emerged from a bedroom and was also ordered into the hallway, where he was asked if he knew Gori. Rosario acknowledged that he did and told police that Gori had paid him $1,000 to hold a bag for him. Rosario then signed a handwritten consent form and took the officers to the bedroom, where he showed them an armoire containing five kilograms of cocaine. Rosario and Pichardo moved to suppress the fruits of the police search and statements they made to the arresting officers. Judge Robert P. Patterson Jr. of U.S. District Court for the Southern District of New York granted the motion to suppress, finding that the officers’ decision to order the apartment occupants into the hallway was an unlawful seizure in violation of the Fourth Amendment. The officers, Patterson said, “seized the occupants of Apartment 1M through a show of police authority,” and he held that the entry into the home was not excused by any exceptions to the warrant requirement. Patterson followed Payton v. New York, 445 U.S. 573, (1980), which requires police to obtain a warrant before entering a home to make a felony arrest. He said, “The use of force to compel the investigatory stop did not occur in the street but was directed at a private residence, a place entitled to special consideration under the Fourth Amendment.” The 2nd Circuit reversed. If the order to evacuate the apartment triggered the heightened protection offered by Payton, Jacobs said, then the order was unconstitutional unless the government can show that one of the five exceptions to the warrant requirement applies. “But if Payton and the warrant requirement are not implicated (and we conclude they are not), then the order to evacuate the apartment and the incidental seizure of its occupants were lawful so long as the officers acted reasonably under the totality of the circumstances,” he said. Jacobs said that “the facts critical to the analysis are that the interior of Apartment 1M was exposed to public view when the door was voluntarily opened,” and the governing principle is found in Santana v. United States, 427 U.S. 38 (1976). In Santana, the U.S. Supreme Court found that a drug suspect whom police had probable cause to arrest and was standing in her doorway, exposed to public view, could not claim a protected privacy interest that triggered the warrant requirement. “Applying the Santana principle, we hold that the warrant requirement and the heightened protections established for the home in Payton are not implicated here,” Jacobs said. “Once the apartment was opened to public view by the defendants in response to the knock of an invitee, there was no expectation of privacy as to what could be seen from the hall.” Therefore, he said, “the officers needed no warrant to temporarily ‘seize’ the occupants and conduct a limited investigation,” an investigation that is constitutional as long as it is reasonable given the circumstances. Jacobs went on to find that the officers acted reasonably under the circumstances. Had the police not looked in the apartment, he said, the delivery woman may have “betrayed their presence intentionally or by her alarm.” In that case, he said, there could have been a violent confrontation or the occupants may have disposed of the evidence. “We conclude that the officers’ conduct involved no more intrusion than necessary under a rapidly developing situation, and therefore satisfies the standard of reasonableness,” he said. In her 16-page dissent, Sotomayor said that the majority had reached an “extraordinary result by holding that the expectation of privacy of an individual standing dozens of feet inside his or her home with an open door is the same as that of an individual standing on a public street.” Sotomayor said the “majority’s reading of Santana is not only incorrect but is irreconcilable with decades of Supreme Court Fourth Amendment jurisprudence.” Said Sotomayor, “Because I believe that the warrant and probable cause requirements for entry into a home set forth in Payton apply in this case, and that the officers had neither, I would affirm the district court.” She said the majority had wrongfully treated the “expectations of privacy in Apartment 1M as an all-or-nothing proposition.” Although plain-view observations may form the basis for a warrant, she said, “the plain-view doctrine does not dispose of the probable cause and warrant requirements for the entry into the home itself.” The distinction with Santana, she said, was that the Santana officers had probable cause to arrest, but no warrant, and a warrant was unnecessary because Ms. Santana was standing in an area where she had no reasonable expectation of privacy. The fact that the officers were permitted to pursue and capture Santana inside her home, she said, was based on the “exigent circumstances of ‘hot pursuit’ excused by the warrant requirement.” Judge Paul R. Michel of the U.S. Circuit Court of Appeals for the Federal Circuit, sitting by designation, joined Jacobs in the majority. Assistant U.S. Attorney Mark F. Mendelsohn was lead counsel on the government’s appeal. David J. Goldstein, of Goldstein, Weinstein & Fuld, was lead counsel for the defense.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.