Matter of B. K. C.

• Decision Date: 09 January 1980
• Docket Number: No. 13779.,13779.
• Citation: 413 A.2d 894
• Parties: In the Matter of B. K. C., Appellant.
• Court: D.C. Court of Appeals

Page 894

413 A.2d 894

In the Matter of B. K. C., Appellant.

No. 13779.

District of Columbia Court of Appeals.

Argued June 26, 1979.

Decided January 9, 1980.

Rehearing and Rehearing En Banc Denied April 24, 1980.

Katharine Kravetz, Public Defender Service, Washington, D. C., with whom Silas J. Wasserstrom, Public Defender Service, Washington, D. C., was on brief, for appellant.

Edward E. Schwab, Asst. Corp. Counsel, Washington, D. C., with whom Louis P. Robbins, Acting Corp. Counsel, Washington,

D. C., at the time the brief was filed, and Richard W. Barton, Deputy Corporation Counsel, Washington, D. C., were on brief, for appellee.

Before NEWMAN, Chief Judge, GALLAGHER, Associate Judge, and PAIR, Associate Judge, Retired.

NEWMAN, Chief Judge:

This is an appeal from a delinquency adjudication based upon a finding that appellant was guilty of petit larceny, D.C.Code 1973, § 22-2202. The issue presented is whether the motions judge committed reversible error in denying appellant's motion to suppress testimony that a shirt, allegedly stolen from Woodward & Lothrop, Inc., was discovered during a warrantless search of appellant's briefcase taken from the possession of his companion.¹ In Part I, we set forth the relevant facts as well as the suppression proceedings and the trial. In Part II, we discuss whether appellant, the owner of the briefcase, had a legitimate expectation of privacy in the briefcase protected by the Fourth Amendment. In Part III, we discuss the nature of the Fourth Amendment protection and the various exceptions to the warrant requirement relied upon by the government to justify the search. We hold that appellant had a legitimate expectation of privacy protected by the Fourth Amendment; that the search of the briefcase cannot be upheld under any recognized exception to the warrant requirement, and thus the evidence resultant from the search should have been suppressed. We reverse.

I

A. Facts

Insofar as relevant to the suppression issue, the evidence was as follows. On December 16, 1977, Mary Julia Potts, a Special Police Officer employed by Woodward & Lothrop, Inc., noticed appellant who was carrying a brown leather briefcase and his companion, D.A.V., on the second floor of the "Woodies" store located at 10th and F Streets, N.W., Washington, D.C. Ms. Potts recognized both juveniles from prior contacts but did not know either by name. She then saw appellant stop at a shirt display, pick up a shirt, bend down and stand up without it. She followed the two youths into an elevator that took all three of them to the fourth floor. During the ride, appellant handed the briefcase to D.A.V. At this point for the sake of clarity, we separate the evidence adduced at the suppression hearing from that adduced at trial.

B. Suppression Hearing

Officer Potts was the only witness called by the government at the suppression hearing. She testified that when the three alighted from the elevator at the fourth floor she asked a security officer, Officer Townsend, to place D.A.V. under arrest and take him to the first floor security office while she pursued appellant who had darted toward an escalator and up to the seventh floor. Appellant then ran to the sub-basement where he was placed under arrest by other officers. Officer Potts further testified that the briefcase in question was opened in the security office and contained a "Woodies" shirt and various looseleaf papers.²

Appellant argued that the search of the briefcase was invalid because either (1) probable cause for the arrest did not exist³ or (2) even if probable cause did exist, a warrant was necessary to search the briefcase pursuant to United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). The court denied the motion to suppress, making no findings of fact and stating no reasons for its decision.

C. Trial Proceedings

After Officer Potts again testified at trial, the government rested. Appellant's motion for judgment of acquittal was denied, and the defense called Officer Townsend. His testimony in pertinent part was:⁴

Detective Mary Potts . . . asked if I would escort a juvenile [D.A.V.] down to the security office, issue him a bar notice and get him out of the store. I was not informed exactly why I was doing this. I recall escorting him downstairs by escalator.

When we got near the Eleventh Street door, the juvenile took a swing at me and turned and ran out the store. At that point, I gave chase and apprehended him with the help of two Metropolitan Police Officers on the corner of 11th and F. Took him back to the security office at that time.

Q. Why did you take him back to the security office?

A. Well, at that time, I was going to charge him with assaulting a police officer.

Q. And did you charge him with assaulting a police officer?

A. No, I didn't. No.

Q. Why didn't you?

A. A search of the bag that [D.A.V.] was carrying revealed a shirt that was property of Woodward and Lothrop.

Q. Were you aware there was a shirt in that bag prior to the arrest?

A. No, I wasn't.

Q. And you had no intention to arrest [D.A.V.] until he swung at you? A. No, I had no intention.

On cross-examination Officer Townsend's testimony in pertinent part:

Q. Were you present when the search of the briefcase was made?

A. Yes, I made the search myself.

Q. Would you describe exactly what happened, please?

A. Okay. We brought [D.A.V.] into the security office. . . We took him into the security office in the presence of the two Metropolitan Police Officers. At that time, he was presently, was served, and the bag he was carrying was searched. I opened that up, pulled out a shirt.

The defense then called D.A.V. who testified concerning his arrest and the search of the briefcase. That testimony in pertinent part:

[Officer Townsend] grabbed me. The lady . . . told him to take me downstairs, follow me out of the store. So he was taking me downstairs to the first floor, side door. The man kept pushing me. I turned around and I smooched him or something, then I ran out the door. Then he started chasing behind me.

* * * * * *

And then police officer . . . on a scooter grabbed me.

* * * * * *

Took me back to the store. Man with the black hair took me in the store, gave me to a taller man with blond hair and he went down the subway to get, catch them, him [appellant] and his friend.⁵

Q. Then what were you, brought into a room or —

A. Took me to a room.

Q. What happened in the room.

A. He handcuffed me.

Q. Anything else?

A. Then [appellant] and them came in.

Q. What happened with the briefcase and the shirt?

A. The man came in the room with it later on.

Q. And what happened, did anybody look in or what did they do with it.

A. [T]he man opened up the briefcase and seen the shirt in it and then start looking through his papers.

* * * * * *

And then they said . . . shoplifters. So he said he was going to charge me and him with shoplifting and he was going to charge his friend with disorderly conduct.

On cross-examination D.A.V. further testified about the briefcase:

Q. So [appellant] opened [the briefcase] up and he showed that he had books.

A. No, no, the security guard opened it up down the room and showed that he had books in it.

The prosecutor then questioned D.A.V. about how he got possession of the briefcase.

Q. The [appellant] gave you the briefcase at some point at that time, is that correct?

A. Yes.

Q. Would you describe the circumstances again, please? How did he do it?

A. He said . . . will you hold these for me, this lady's talking about me.

Q. All right, then what happened?

A. I held them and the elevator stopped and he went right and I went left.

* * * * * *

Q. Then what happened?

A. The lady and a man came running back downstairs. The lady pointing at me, there he go. . . . The man grabs me, takes me to the first floor.

* * * * * *

I turned around, he jumped, smooched him, ran out the door, police officer grab ire.

Q. Okay. And what did you do with the briefcase while you were running? A. Had it in my hand.

* * * * * *

Q. You said when you were running away from the store detective, you opened the briefcase and you were attempting to get rid of the shirts that you had taken.

A. I only had one shirt in there. I was trying to throw that away, trying to run on down the alley. But he cut me off.

At the end of all the testimony, the court found appellant guilty, and noted that it did not credit the testimony of Officer Townsend and D.A.V.⁶

II

In light of the Supreme Court's recent decision in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), initially we must address the issue of whether appellant, who seeks the exclusion of the questioned evidence, had a legitimate expectation of privacy protected by the Fourth Amendment as to the search in question.

In Rakas v. Illinois, supra, the Supreme Court had occasion to address at length the concept of legitimate expectation of privacy — the reasonable expectation of freedom from government intrusion — which is central to a Fourth Amendment claim. The case involved a search of an automobile stopped by the police on the suspicion that the auto was the getaway car in a robbery. The officer seized a box of rifle shells from the glove compartment and a sawed-off rifle under the front passenger seat. The petitioners — who did not include the owner-driver — were then placed under arrest. Before trial they moved to suppress the evidence seized alleging a violation of the Fourth and Fourteenth Amendments. The Court, in holding that suppression was properly denied "reaffirmed the principle that the `rights assured by the Fourth Amendment are personal rights [which] . . . may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure." Id. 99 S.Ct. at 428 quoting Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 973, 19 L.Ed.2d 1247 (1968); Alderman v. United States, ...