U.S. v. Powell

• Decision Date: 15 September 1989
• Docket Number: No. 88-501.,No. 88-480.,88-480.,88-501.
• Citation: 563 A.2d 1086
• Court: D.C. Court of Appeals
• Parties: UNITED STATES, Appellant, v. Elwin W. POWELL and William C. Wardlaw, Appellees.

563 A.2d 1086

UNITED STATES, Appellant, v. Elwin W. POWELL and William C. Wardlaw, Appellees.

No. 88-480.

No. 88-501.

District of Columbia Court of Appeals.

Argued May 17, 1989.

Decided September 15, 1989.

Daniel S. Seikaly, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell, Asst. U.S. Atty. at the time the motion was filed, and John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., were on the motion for summary reversal, for appellant. Kevin F. Flynn, Asst. U.S. Atty., also entered an appearance for appellant.

Mark L. Goldstone, appointed by this court, for appellees.

Before NEWMAN, FERREN, and TERRY, Associate Judges.

TERRY, Associate Judge:

Appellees were each charged by information with unlawful entry, in violation of D.C.Code § 22-3102 (1981). When they moved to dismiss the informations against them, the court set their motion for hearing on the scheduled trial date. The case came on for trial a few weeks later, and the trial judge, after hearing argument but no testimony, denied the motion. A jury was then selected and sworn, and the government presented its evidence. At the conclusion of the government's case, appellees renewed their motion to dismiss, and this time the court, having heard the relevant evidence, granted it. From that order the government appeals.¹ We reverse the dismissal and remand the case with directions to reinstate the informations.

I

The Washington Metropolitan Area Transit Authority (WMATA) operates the Metrorail subway system, commonly known as Metro, in the District of Columbia and its suburbs. The busiest station in the system is one in downtown Washington known as Farragut West. The east entrance to the Farragut West station is at the southeast corner of 17th and I Streets, N.W., across the street from Farragut Square. Passengers alighting from subway trains at Farragut West who intend to leave by the east entrance ride escalators from the underground platforms to get to the street level. At the top of the escalators, however, the departing passengers do not immediately find themselves on city sidewalks, but in an area approximately forty-four by fifty-four feet belonging to WMATA. This rectangular space is bounded on the west by 17th Street, on the north by I Street, on the east by a wall, and on the south by the Hill Building. The second story of the Hill Building overhangs the entire area.

For some time prior to the fall of 1987, about four to eight persons, apparently homeless, sought shelter almost every night in the east entrance to the Farragut West station. As a result, according to David Cooksey, director of WMATA's Office of Facilities Maintenance, the sidewalk, escalators, and underground areas became "unsightly," "unsanitary," and "unsafe." Cooksey testified that "large amounts of human excrement [were] left at the bottom of the escalators each morning, [and the] escalator pits in which my mechanics had to pull maintenance were filled with urine. . . ." Consequently, the east entrance to the Farragut West station had to be cleaned two more times a day than other station entrances, besides having to be hosed down with highpressure steam and water about twice a week, eight times as often as other stations. The corrosive effect of urine on the working parts of the escalators resulted in "additional maintenance requirements of some significance." The additional cost "over and above the normal maintenance" was more than $16,000 a year.² Furthermore, Lieutenant Frank Belton of the WMATA Transit Police testified that not only did loiterers menace the subway patrons, but so much fecal matter was left in the area by the overnight sojourners that early-morning commuters had to "do a hopscotch" when getting on or off the escalators.

In October 1987 Mr. Cooksey took corrective action by ordering the installation of a pair of folding, accordion-like gates at the Farragut West station, one on the 17th Street side and one on the I Street side.³ Cooksey testified that the "geometry of that particular entrance" made it impossible to put a gate directly in front of the escalators so as to leave the surrounding area open. The gates were therefore placed on the property line dividing WMATA's property from the public sidewalk belonging to the District of Columbia. Consequently, once the gates were closed, no one could use or walk upon any part of the WMATA property, although any person could still use the public sidewalks on the two adjacent streets. The gates were closed when the station closed, and the station regularly shut down at 12:30 a.m.

On November 24, 1987, however, the Washington Redskins were playing a Monday night football game at Robert F. Kennedy (RFK) Stadium. The game ran past midnight, so Metro authorities kept the subway running after the usual closing time to accommodate fans who left the stadium after 12:30 a.m. Thus, when Lieutenant Belton came on duty at the Farragut West Metro station shortly after midnight, the transit system was still operating. He immediately noticed about forty to fifty people, some of whom were singing, congregated in front of the escalators at the street level. Because another group had demonstrated against the installation of the gates about a week earlier, Belton assumed that these people were demonstrators also, although no demonstration permit had been issued, and Belton saw no placards to explain what they were doing there. Knowing that the station would be open later than usual because of the football game,⁴ he allowed them to remain there after 12:30.

After the last train from RFK Stadium passed through Farragut West at about 2:00 a.m., the station attendant was ordered to close the station for the night. When the attendant went to the street level, however, he realized that he could not close the two gates because, if he did so, the assembled group of people would be locked inside the station. In an effort to clear the area, Lieutenant Belton told these people that they must leave WMATA property or be subject to arrest for unlawful entry. Everyone left.

About ten minutes later Lieutenant Belton noticed appellees Powell and Wardlaw, whom he had not seen with the group earlier, sitting together on the pavement with their backs against the wall, facing the escalators. They carried no signs or other symbols to indicate why they were there at that hour. Moreover, they were inside the area that would be enclosed by the gates. Belton told them that the station was closed for the night and that they too must leave WMATA property. Appellees said nothing. Receiving no response, and being under orders to secure the area for the night, Lieutenant Belton ordered them arrested. When they refused to stand up and walk out on their own, they were carried out to a police vehicle. During their arrest, appellees remained silent.

At the close of the government's case in chief, the court denied (correctly) appellees' motion for judgment of acquittal. Appellees then renewed their pretrial motion to dismiss the informations. Because jeopardy had attached, see, e.g., Routh v. United States, 483 A.2d 638, 641-642 (D.C. 1984), the court asked them in the presence of counsel if they wished to waive their right to have the empaneled jury decide the case, thereby subjecting them to retrial at a later date. After appellees agreed to the waiver, the court granted their motion to dismiss.⁵ The court's reasons for granting the motion were given orally from the bench:

I really think [the cases] should be dismissed and then taken on up to the Court of Appeals and let them say if you have enough on the fence alone, then bring it on back. [That would] be all right with me.

As we read these and similar remarks, the trial court based its dismissal on what it saw as the failure of the government to prove an additional specific factor establishing appellees' lack of a legal right to remain on WMATA property.

II

For purposes of the unlawful entry statute, WMATA property is considered to be public property. See O'Brien v. United States, 444 A.2d 946, 948 (D.C. 1982). When a person is charged in the District of Columbia with unlawful entry on public property, the government must prove "some additional specific factor establishing the [person's] lack of a legal right to remain." Id. (citations omitted). "Such factors may consist of posted regulations, signs, or fences and barricades regulating the public's use of government property. . . ." Carson v. United States, 419 A.2d 996, 998 (D.C. 1980) (emphasis added). The purpose of this requirement is to protect any First Amendment rights which may be implicated in the defendant's conduct, so that "an individual's lawful presence is not conditioned upon the mere whim of a public official. . . ." Leiss v. United States, 364 A.2d 803, 806 (D.C. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977); see Wheelock v. United States, 552 A.2d 503, 505 (D.C. 19881: O'Brien v. United States, supra, 444 A.2d at 948. We hold that the required "add[tional specific factor" in this case was the pair of gates which WMATA personnel closed every night at the conclusion of the day's business.⁶

A fence, a gate, or any other barrier which controls public access to property gives notice to persons that they do not have a legal right to enter or remain in a certain area. See, e.g., Culp v. United States, 486 A.2d 1174, 1177 (D.C. 1985) (boarded-up windows put public on notice that intruders were not welcome in unoccupied house); Carson v. United States, supra, 419 A.2d at 998 (chain separating White House lawn from path used by tourists indicated that tourists were obliged to stay on the path); Smith v. United States, 281 A.2d 438, 440 (D.C. 1971) (locked gates and chain link fence provided sufficient notice that unauthorized persons were not to enter property); Bowman v. United States, 212 A.2d 610 (D.C. 1965) (gate in railroad station with sign above it stating that only ticket...