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United States of America v. Frank Correa

August 2, 2011

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

The opinion of the court was delivered by: Van Antwerpen, Circuit Judge.

PRECEDENTIAL

Argued on June 23, 2011

Before: BARRY, AMBRO, and VAN ANTWERPEN, Circuit Judges

OPINION OF THE COURT

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 expectation. Accordingly, Correa‟s suppression motion was properly denied. We will affirm.

I.

In December 2007, the Essex County Fugitive Task Force*fn1 ("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.

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 Defendant-Appellant 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 the Speedy Trial Act, 18 U.S.C. § 3162.*fn2 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-a-firearm charge. On April 21, 2010, the District Court sentenced Correa to 100 months‟ imprisonment followed by three ...


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