Fogg v. United States
| Decision Date | 18 March 2021 |
| Docket Number | No. 17-CF-231,17-CF-231 |
| Citation | 247 A.3d 306 |
| Parties | Jermaine FOGG, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Sean R. Day for appellant.
Eric Hansford, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, Rizwan Qureshi, and Christopher R. Howland, Assistant United States Attorneys, were on the brief, for appellee.
Before Blackburne-Rigsby, Chief Judge, and Beckwith and McLeese, Associate Judges.
Appellant Jermaine Fogg appeals the denial of his motion to suppress a handgun, heroin, and drug paraphernalia recovered from bags inside the trunk of an overdue rental car during its repossession. Appellant argues that: (1) the involvement of Metropolitan Police Department ("MPD") officers at the scene of the repossession transformed the repossession agent's inventory of the car's contents into a government search, subject to the limitations of the Fourth Amendment; and (2) appellant had a reasonable expectation of privacy in the overdue rental car even though he was not authorized by its owner, Enterprise Rent-A-Car ("Enterprise"), to drive it. We hold that the repossession agent's search of appellant's bags inside the rental car was state action subject to the Fourth Amendment's prohibition of unreasonable searches and seizures. Because the search occurred without a warrant, or pursuant to any exception to the warrant requirement, the contraband discovered therein was inadmissible. Therefore, the trial court erred in denying appellant's motion to suppress, and we reverse.1
In the period relevant here, Terrence Ross was employed as a vehicle-recovery agent for R & R Towing and Recovery. For more than ten years, Ross, through R & R Towing and Recovery, contracted with rental car companies EAN Holdings and Enterprise to repossess vehicles and investigate auto theft and fraud.
On the evening of August 9, 2015, Ross was driving along Benning Road NE when he saw a black Ford Mustang, parked on the opposite side of the street, matching the description of a vehicle he had tried to recover for Enterprise multiple times.2 According to Ross, Enterprise told him that the Mustang was "linked to [the] other cars" he had repossessed earlier that year. Ross made a U-turn and positioned his car in front of the Mustang to box it in, as another car was parked behind. Ross exited his vehicle and asked appellant, who was alone and sitting in the driver's seat, to shut off the engine. According to Ross, appellant attempted to escape by putting the Mustang in reverse; once he realized Ross's tow truck was blocking him, however, appellant stopped the vehicle and put his hands on the steering wheel. Ross walked to the driver's side door, opened it, and asked appellant to shut off the engine and exit the car. Appellant stepped out of the car and walked toward the trunk, which he opened, saying he wanted to "get [his] stuff." Ross, however, grabbed the keys from appellant's hands and closed the trunk. Ross told appellant "that he was not able to take anything out of the vehicle [because] [h]e was not the renter of the vehicle [and] anything that was in the vehicle would be held as evidence." Ross ordinarily permitted people to retrieve their belongings from repossessed vehicles but declined to do so here "in case the police wanted to go through the vehicle ... to make sure that there was nothing that would link [the Mustang] to an auto theft ring." Ross then told appellant that because the Mustang was designated stolen in Enterprise's internal database – though it was not reported stolen to the police – Ross was repossessing the car and appellant was free to leave.
According to Ross, appellant left the scene, but returned five to ten minutes later, saying Ross again told appellant that he could not take anything out of the car; appellant remained for a few minutes and left. After another five to ten minutes, appellant returned, but this time in a Nissan driven by another man. The two men exited the car and began walking towards Ross, at which point Ross called 911. Ross said that the call was Ross again told appellant that he could not access the Mustang. When Ross received a call from MPD Officer John Javelle, Ross explained that he was attempting to repossess an overdue rental car, and the "person who was driving the car was insistent on recovering some belongings from the car;" and that after he "had sent [the individual] away several times," the individual had come back with another person. When a police vehicle arrived several minutes later, appellant and his companion returned to the Nissan and drove away. Ross told the responding officers that the Nissan "could have possibly been fraudulently rented," so they left and pulled it over at a gas station approximately 200 yards away.
After locking the Mustang, Ross drove to the gas station. There, Ross informed Officer Javelle, who had responded to the gas station, about his prior encounters with appellant, and specifically that appellant kept insisting that he be allowed to retrieve his belongings from the trunk of the car.3 Ross requested that officers be present while he searched the car, though he intended to return appellant's personal property that was in it. Ross wanted to "take [appellant's] property out and make sure that there was nothing ... that would be harmful to [himself] or anyone else." He also wanted to conduct an initial inventory, knowing that it was "standard practice" that the car's contents would be inventoried upon arrival at the facility where it would be housed. Ross testified that it was his practice to conduct an initial inventory in order "to cover [himself]," and to give him "a general idea of what is in the vehicle when [he] drop[s] that vehicle off." He explained that "if an employee of that facility where the vehicle is housed [ ] has sticky fingers, I already know ... what property was in that vehicle." Thus, Ross would know if appellant "might say that [something] was in the car that was not" upon retrieving his items from the facility.
Two other officers sitting in a police car at the gas station accompanied Ross back to the Mustang to stand by while he inventoried the car. Ross asked the officers if they wanted to search the Mustang, but both declined. Officer Javelle testified that Officer Joseph Quinlan, one of the officers present during the search, was "very adamant ... that MPD was not going to search the car, that [MPD] did not have a search warrant, that the car was not reported stolen, and that [Officer Quinlan] wasn't going to get involved in looking through the car." Officer Quinlan and another officer accompanied Ross to the Mustang and told him "that [he] could search the car and if [he] found anything to just let them know." Officer Javelle remained at the gas station.
With the officers standing a few feet behind him, Ross opened the Mustang's trunk and began pulling bags from the trunk, looking at their upper most contents, and placing them on the ground, while looking for anything "harmful to [him] or anyone else." As Ross reached to pick up a black plastic bag, he opened its top, which was untied, and saw the handle of a gun. Ross left the bag in the trunk and called over an officer, telling the officer "that there was something that he needed to take a look at." Ross later testified that he "basically just raised [his] hand and [ ] told the officers that it was their turn." The officers came over, "looked inside," and saw the gun "in plain sight." Upon seeing the gun, the MPD officers told Ross to cease his inventory and called for backup.
With Ross returning to the Mustang, Officer Javelle approached appellant at the gas station and asked him for information to verify his identity. Officer Javelle learned from MPD's NCIC database that appellant was wanted for questioning in relation to a 2014 homicide. While Officer Javelle was inquiring about the incident, which included telephoning the MPD's homicide branch, he received a radio report that a gun had been discovered in the Mustang. Even though the NCIC notification instructed "not [to] arrest based on this information," Officer Javelle believed that the notification coupled with the radio report about the gun authorized him to detain appellant "to investigate what was going on." After placing appellant in handcuffs, Officer Javelle was unable to reach the detective assigned to the investigation, and he released appellant and told him he was free to go. Appellant left the scene on foot.
MPD then dispatched Department of Forensic Science technicians to process the gun. In the plastic bag containing the gun, the forensic technicians recovered digital scales, a plastic bag containing small plastic bags, and a clear plastic bag containing white powder, which later tested positive as heroin. Five days later, MPD officers arrested appellant pursuant to a valid arrest warrant stemming from the items found in the car.
On November 10, 2015, a grand jury indicted appellant on multiple charges arising out of the evidence obtained from the rental car and subsequent search of appellant's home pursuant to a search warrant.4 On June 12, 2016, appellant filed a motion to suppress the evidence recovered from the Mustang. Judge Neal E. Kravitz held a three-day evidentiary hearing and denied appellant's motion on June 21, 2016. The motions judge found "no evidence that the police were involved in the search of the car, either conducting it themselves or arranging for or encouraging [ ] Ross to conduct it on their behalf or with...
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...2020). Standing to challenge a search was found in a case where an overdue rental car was searched during repossession. Fogg v. U.S. , 247 A.3d 306 (D.C. Ct App. 2021). When a driver flees a car, they do not automatically lose standing under the abandonment doctrine. In U.S. v. Chavez , 985......