FRIENDLY, Circuit Judge: *
This appeal is from a judgment of the District Court for the Eastern District of [987] 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 pretrial 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,1 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 Arbole-da 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.2 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 [988] 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.
I.
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, 424.3 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,4 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 [989] 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.).5 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). Arbole-da 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, would justify Bis-bee’s presence on the ledge and the subsequent arrest of Arboleda and search of the apartment.
The rule requiring a movant at least to make an initial demonstration of lack of authority is sound both in logic and in fairness. As noted, the general rule is that the burden is on the movant, and so the movant must take some action, such as questioning the existence of a warrant, before the bur[990] den shifts to the Government. Further, there is a presumption of regularity of official action which the movant must do something to unseat. See United States v. Mangan, 575 F.2d 32, 41 (2 Cir.), cert. denied, 439 U.S. 931, 99 S.Ct. 320, 58 L.Ed.2d 324 (1978); United States v. Warrington, 17 F.R.D. 25, 29 (N.D.Cal.1955). It would have been simple for defense counsel to have asked Bisbee or Flores, who also testified at the suppression hearing, whether or not they had an arrest warrant for Gilberto. It is true that it would have been equally simple for the Government to have asked, but there was no occasion for its doing so since in the district court defendant made no point of the illegality of the projected entry through the door or the contemplated arrest of Gilberto. Arboleda did nothing below to suggest to the Government that the existence of a warrant for the arrest of Gilberto would be called into question, even though Arboleda knew that the officers explained their coming to the apartment and the stationing of Bisbee on the ledge on the basis of the effort to arrest Gilberto. “Appellant should not profit from his own failure to develop a proper record.” Mangan, supra, 575 F.2d at 41.
The dissent suggests that we should relieve the appellant of the consequences of this failure because it is somehow “unfair” to expect him to question the existence of a warrant for the arrest of a third party. This ignores the facts of the case. The role of the contemplated arrest of Gilberto in this scenario did not suddenly emerge out of the blue. Arboleda knew that Bisbee was positioned on the ledge pursuant to the endeavor to arrest Gilberto, and it was open to him below to question the officers about this effort by, for example, asking if they had a warrant and inquiring into the basis for their belief that Gilberto was in the apartment. The paucity of record evidence on these points is not due to defendant’s inability to anticipate them, but rather is caused by the fact that pitting his own version of the facts against that of the officers as to what occurred on the ledge, he did not question them in any way. If, as the dissent suggests, there is anything “Kafkaesque” about this case it is the complete “metamorphosis” in appellant’s legal argument between trial and appeal — a change so great as to make it questionable whether Arboleda should even be heard on the contention with respect to the illegality of Bisbee’s presence on the ledge that is now mainly pressed.6
[991] II.
While this is a sufficient basis for affirmance, there is another. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Court said that “capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Id. at 143, 99 S.Ct. at 430. See also Katz v. United States, 389 U.S. 347, 351, 361, 88 S.Ct. 507, 511, 516, 19 L.Ed.2d 576 (Harlan, J., concurring) (1967). Clearly Arboleda had such an expectation with respect to objects within his apartment but Bisbee’s impermissible peeping-Tom activity produced nothing that led to the subsequent arrest and seizures. In contrast Arboleda had no legitimate expectation of privacy with respect to an object which he threw outside the apartment with the objective of getting.rid of it before it could be seized by the officers whose presence at the door he had apparently detected.
The district judge stated that Bisbee grabbed the package “from the fire escape.” The fire escape was a common area where Bisbee could lawfully have been whether or not there was an arrest warrant. If Arboleda tossed the contraband onto it, he can claim no violation of his rights. Although Arboleda may have intended to retrieve the package later, by placing it in an unprotected area he had abandoned it for Fourth Amendment purposes. See United States v. Lewis, 227 F.Supp. 433 (S.D.N.Y.1964). Arboleda’s action was precipitated by the perfectly legal knock of the officers at the door, and not by anything which Bisbee did, authorized or not.
Bisbee’s testimony, however, suggests that the package fell short of the area where the fire escape hangs over the ledge and came to rest on the ledge itself. This makes no difference, since Arboleda had no legitimate expectation of privacy in the ledge.
Rakas provides considerable guidance on assessing whether there exists a legitimate expectation of privacy in any particular case. The Court noted that one may have a legitimate expectation of privacy “by virtue of [the] right to exclude.” 439 U.S. at 143-44 n. 12, 99 S.Ct. at 430. There is no evidence that Arboleda exercised any exclusive control over the ledge, which ran along the front of the building and was accessible to other tenants from their windows and the fire escape.7 Another relevant factor in considering what constituted a legitimate expectation of privacy is “the way a person has used a location.” 439 U.S. at 153, 99 S.Ct. at 435 (Powell, J., concurring); 439 U.S. at 141, 149, 99 S.Ct. at 429, 433. Here there was no indication that Arboleda had ever used the ledge in a private manner or as a part of his home. A third factor is whether the defendant “took normal precautions to maintain his privacy.” 439 U.S. at 152, 99 S.Ct. at 435 (Powell, J., concurring). Again, there is no evidence that Arboleda took any such precaution with respect to the ledge; indeed, the record demonstrates that the exigent circumstances in which Arboleda found himself when the officers knocked left no time for precautions.
It is difficult to imagine a legitimate expectation of privacy in an open area running along the front of the second floor of a building over a street. Bisbee was apparently observed on the ledge by someone who called the police to report a burglary; later Bisbee spoke through the kitchen window over the ledge to police on the street below. Cf. United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 2409, 49 L.Ed.2d [992]*992300 (1976). Although Arboleda complains in his reply brief that it is “quite conceivable” that there may have been obstructions to observation from the street, such speculation hardly suffices to discharge his burden of establishing a legitimate expectation of privacy. See Rakas, supra, 439 U.S. at 130-31 n. 1, 99 S.Ct. at 424.
Arboleda likewise is not helped by invocation of the hoary concept of “curtilage”. Terming a particular area curtilage expresses a conclusion; it does not advance Fourth Amendment analysis. The relevant question is the one surveyed above, whether the defendant has a legitimate expectation of privacy in the area. See Wattenberg v. United States, 388 F.2d 853, 858 (9 Cir. 1968). It seems decidedly questionable whether, under the Rakas analysis, a homeowner could insist upon a search warrant if he hurled a package of cocaine onto his front lawn where it could be plainly seen by anyone. In its recent decision in Payton v. New York, supra, 48 L.W. at 4380, the Supreme Court identified the line at which the requirement for an arrest warrant takes hold as “the entrance to the house” and the “threshold”. See also United States v. Santana, supra, 427 U.S. at 42, 96 S.Ct. at 2409 (vestibule behind open door is public place). In any event, it is doubtful that the curtilage concept has much applicability to multifamily dwellings such as the one involved here. As the Court stated in Commonwealth v. Thomas, 358 Mass. 771, 267 N.E.2d 489, 491 (1971):
In a modern urban multifamily apartment house, the area within the “curti-lage” is necessarily much more limited than in the case of a rural dwelling subject to one owner’s control. ... In such an apartment house, a tenant’s “dwelling” cannot reasonably be said to extend beyond his own apartment and perhaps any separate areas subject to his exclusive control.
See also United States v. Agapito, 620 F.2d 324, 331 and n. 9 (2 Cir. 1980).
Finally, any distinction between the ledge and the fire escape for Fourth Amendment purposes would be irrational. The fire escape projects over the ledge and runs along it, a small space above. As noted, it is a common area of the building, and thus no particular tenant can claim Fourth Amendment protection in it. Arboleda was not trying to hide the package on the portion of the ledge immediately adjacent to his apartment; Bisbee testified that Arboleda “directed” the package toward the fire escape but that it “hit the bar from the fire escape and rested there on the ledge.” It is difficult to see why, under these circumstances, the ledge, which is readily observable from the fire escape and even runs under it in areas, should have a constitutionally different status than the fire escape itself.
Since the seizure of the package of cocaine was lawful both for the reason stated in Part I andifor that stated in Part II of this opinion, the judgment of conviction is affirmed.
Again, apart from the concession, the dissent’s further argument, fn. 3, that the officers were required to announce their presence and purpose prior to entering the ledge as opposed to the apartment is unpersuasive, even assuming the ledge was a protected area. See 2 LaFave, Search and Seizure 128 (1978) (“Historically, the notice requirement has been applied only to dwellings and other buildings within the curtilage . . . .”). The rule proposed in the dissent would require officers entering the yard of a home on their way to making an entry to shout their presence and purpose from the gate rather than after walking up to the door. United States v. Fluker, 543 F.2d 709, 716 (9 Cir. 1976), relied on by the dissent, is hardly in point. The officers there entered what the court considered part of a dwelling area by breaking down the door. Here there was no entry into a dwelling or comparable area but simply onto an exposed ledge which, while obviously part of the building, was not part of the apartment.