Moore v. U.S.
Decision Date | 06 December 1983 |
Docket Number | No. 82-814.,82-814. |
Citation | 468 A.2d 1342 |
Parties | Samuel MOORE, Jr., Appellant, v. UNITED STATES, Appellee. |
Court | D.C. Court of Appeals |
David A. Levitt, Washington, D.C., appointed by the court, for appellant.
G. William Currier, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed and the case was argued, Michael W. Farrell, Judith Hetherton and J. Alvin Stout III, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.
Before NEWMAN, Chief Judge, and NEBEKER and PRYOR, Associate Judges.
In April 1982, appellant Samuel Moore, Jr. was convicted by a jury of possession of an unregistered firearm and ammunition for an unregistered firearm. D.C. Code §§ 6-1811(a), -1861(c) (1978 & 1980 Supp.). Having been acquitted of carrying a pistol without a license, id. § 22-3204, his principal contention1 on appeal is that the trial court, upon hearing his pretrial motion to suppress, erred in finding that he lacked "standing" to challenge the use of a seized weapon as evidence against him. We are invited to hold that appellant should have been allowed to invoke the protection of the exclusionary rule, and therefore to reverse and remand this case for retrial. We find that the trial court did err on the "standing" issue, but nonetheless conclude that the convictions should be affirmed.
Metropolitan Police Officer John J. Harling, a twelve-year veteran of the force, was the government's only witness at the suppression hearing. He testified that, on the evening of October 14, 1981, he and his partner, Officer Andrew Crump, received a radio report that a Negro male, five feet six or seven inches tall, 125 pounds, wearing a white hat and white trench coat, was standing at Sixteenth Street and Good Hope Road, S.E., with a gun in his left rear trouser's pocket.2 The officers approached the vicinity and observed appellant, who matched the description, leaning against or standing near a fence on the corner of Sixteenth and W Streets, S.E.3 Officer Harling, who was in uniform, stopped his cruiser and walked towards appellant. He noticed a bulge in appellant's left trench coat pocket and directed appellant to stop.4 Appellant took several steps away from the officer, but Officer Harling grabbed him by the left arm, preventing appellant from walking away. The officer then pulled appellant's hand from the left trench coat pocket, reached in, and withdrew a loaded .38 caliber revolver. Appellant was then arrested.5
Appellant presented a different version of events. He related that while standing on the street he was approached by Officer Harling. Denying any evasive action on his part, appellant recalled that his hands were in his trench coat pockets because the night was cool. He denied the presence of a bulge in the left pocket. According to appellant, Officer Harling came up to him and, without explanation, began to search him.6 Finding nothing incriminating on appellant, Officer Harling commenced a search of the surrounding area. Officer Harling then returned to appellant, commanded him to turn away from the officer, and once again searched him. Appellant stated that during this second search, the officer "allegedly discovered the gun in my coat." Essentially, appellant claimed that the weapon was "planted" on him;7 appellant stated that Officer Harling "acted as though [the weapon] came out of" his trench coat pocket.
The trial court denied the motion to suppress, holding that appellant lacked "standing" to raise the Fourth Amendment claim. With reference to United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), the court reasoned that appellant failed to allege either a possessory interest in the weapon or that it was seized during a search of his person. Because of this, the court concluded that appellant did not make a cognizable showing that his Fourth Amendment rights had been violated. Upon review of the record, we disagree with the trial court on this point because we find that appellant's testimony did present allegations sufficient to enable him to assert a Fourth Amendment claim.
The Supreme Court has often stated that "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-26, 58 L.Ed.2d 387 (1978) (citing additional cases); Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). Before asserting a ground for suppression, the movant must first allege that "the disputed search and seizure has infringed an interest of [his] which the Fourth Amendment was designed to protect." Rakas, supra, 439 U.S. at 140, 99 S.Ct. at 429.
In order to prevail on a motion to suppress, the movant must establish both that he had a legitimate expectation of privacy in the area searched, and that, in fact, the search was illegal. See Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633 (1980); Rakas, supra, 439 U.S. at 143, 148, 99 S.Ct. at 430, 432-33. A defendant's allegation that he has a property interest in the item seized is not diapositive. See Rawlings, supra, 448 U.S. at 105, 100 S.Ct. at 2561. In Salvucci, supra, the Court made it clear that, in order to assert a Fourth Amendment claim, the defendant need not be in possession of the seized item at the time of seizure.8 At the same time, however, the Court abolished the "automatic standing" doctrine of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), which previously had allowed defendants in possessory cases to challenge evidence used against them at trial, without admitting possession.9 In reaffirming the touchstone of privacy articulated in Rakas and Rawlings, the Salvucci Court reemphasized the personal nature of Fourth Amendment rights and explained, "[w]e simply decline to use possession of a seized good as a substitute for factual finding that the owner of the good had a legitimate expectation of privacy in the area searched." Salvucci, supra, 448 U.S. at 92, 100 S.Ct. at 2553.
We must assess appellant's claim in the instant case with these principles in mind. Appellant contends that the trial court incorrectly based its ruling at the suppression hearing on the fact that appellant denied a possessory interest in the items seized. He argues that a possessory interest is not controlling because "a person who denies any interest in the items seized may challenge their [sic] introduction into evidence if invasion of his property led to the seizure."
The government, in support of the trial court's ruling, argues that appellant failed to establish a "nexus" between the allegedly illegal body search and the weapon's seizure. We take this to mean that appellant, by testifying that Officer Harling probably found the weapon during his search of the surrounding public area, did not show that the weapon seized was the fruit of the body search. Since appellant had no legitimate expectation of privacy in the surrounding public area, cf. United States v. Speed, 388 A.2d 892, 893 (D.C.1978), it is urged that appellant has no cognizable Fourth Amendment interest.
This is not a case in which appellant denied any knowledge of the source of the item allegedly seized. Nor is this a case in which appellant did not allege he was illegally searched by police. Here, according to appellant's allegations, he was stopped by Officer Harling, who eventually searched appellant and recovered a weapon. This alleged, with sufficient particularity, that the weapon was seized during a search of appellant's person, an area in which he had the requisite expectation of privacy.10 We hold that appellant did present a cognizable Fourth Amendment claim on these facts.11 We decline to remand at this point because the record is sufficiently developed to enable us to rule on the merits of appellant's claim. See Brown v. Illinois, 422 U.S. 590, 604, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416 (1975); compare Salvucci, supra, 448 U.S. at 95, 100 S.Ct. at 2554. We believe that our inquiry should be guided by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).12
Officer Harling testified, and the trial court found13 that the police officers received a radio report of a man, wearing distinctive clothing and possessing certain physical characteristics, carrying a weapon at a specified location. The officers, long time veterans of the police force, spotted appellant near the scene, in a high crime area, and substantially matching the reported description. Appellant's coat pocket seemed to bulge as if it was weighted down by a heavy object. Because these facts constitute reasonable grounds for suspicion under Terry, supra, Officer Harling was allowed to forcibly detain appellant when he did not stop as requested.
The officer then reached into the pocket of appellant's coat, pulled out a loaded weapon, and placed appellant under arrest.14 Appellant places undue weight on his argument that, in order for a detention to be a Terry stop rather than an arrest, the officer must "frisk" the outer clothing of a suspect prior to actual recovery of a weapon. This is not required. See Lyons v. United States, 315 A.2d 561, 562-63 (D.C. 1974); Murphy v. United States, 293 A.2d 849, 850-51 (D.C.1972); see also Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Gaskins v. United States, 262 A.2d 810, 811 (D.C.1970). Given the facts that we have recounted, it is also not — contrary to appellant's claim — of constitutional significance that an anonymous tipster provided the information leading to the stop and search. See Lawson v. United States, 360 A.2d 38, 39 (D.C.1976); United States v. Walker, 294 A.2d 376, 378 (D.C. 1972), cert. denied, 414 U.S. 1007, 94 S.Ct. 368, 38 L.Ed.2d 245 (1973). The officer's actions were...
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