Rose v. US

• Decision Date: 05 August 1993
• Docket Number: No. 91-CF-499.,91-CF-499.
• Parties: John L. ROSE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

629 A.2d 526

John L. ROSE, Appellant, v. UNITED STATES, Appellee.

No. 91-CF-499.

District of Columbia Court of Appeals.

Argued October 13, 1992.

Decided August 5, 1993.

Suzanne D. Sager, Washington, DC, appointed by the court, for appellant.

Thomas R. Eldridge, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher, Thomas J. Tourish, Jr., and Abby Stavitsky, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before FERREN, SCHWELB and WAGNER, Associate Judges.

FERREN, Associate Judge:

After his convictions for distribution of cocaine and possession with intent to distribute, D.C.Code § 33-541(a)(1) (1988 Repl.), appellant seeks review of the trial court's denial of his motion to suppress tangible evidence and an out-of-court identification. He argues that the trial court should have excluded this evidence because the police obtained it as a result of a warrantless entry into his aunt and uncle's apartment. The government replies that appellant lacks standing to object to the warrantless entry. We conclude that the record requires us to hold that appellant has standing. It follows on this record — as the government concedes — that the evidence must be suppressed.¹

I.

According to the government's evidence,² the circumstances of appellant's arrest were as follows. At about 6:00 p.m. on May 1, 1990, Officer Rene Davis of the Metropolitan Police Department, working undercover, saw appellant come out of an apartment building and walk toward another at 3253 23rd Street, S.E.³ Officer Davis signalled to appellant that she wished to purchase rock cocaine. Appellant motioned to her to approach. Officer Davis did so and asked appellant if she could buy two $20 pieces of rock cocaine. Officer Davis and appellant then went into the 23rd Street apartment building where, on the landing between the second and third floors, the officer gave appellant $40 in prerecorded bills in exchange for two plastic bags of rock substances. While this transaction was taking place, a door opened to apartment 24 on the second floor, and a woman asked appellant if he wanted her to leave the door unlocked. He said no. Officer Davis then asked appellant whether he would still be there if she came back in five minutes, to which appellant replied that he would either be "out here" or in the apartment where the woman was. He also told Officer Davis that, because he had a key, he did not know why the woman had asked him if he wanted her to leave the door unlocked. Officer Davis then returned to her car and radioed to an arrest team, reporting that she had just made a drug purchase and describing the seller⁴ and where he could be found.

Two members of the arrest team, Officer Calvin Jones and Sergeant Joseph Zovak, then entered the apartment building and, not seeing the subject in the hallway, knocked at the apartment indicated by Officer Davis. According to Officer Jones, a woman⁵ answered the door, and Sergeant Zovak announced that they were police officers looking for a suspect in relation to a narcotics offense. There is no indication in the record that the officers ever obtained or displayed a warrant either to arrest appellant or to search apartment 24. Officer Jones testified that the woman opened the door, stepped back, and said "Okay," admitting the officers into the apartment. As the officers crossed the threshold, they saw appellant walking into the living room. They approached appellant, detained him, and patted him down, finding nothing. They then escorted him outside the apartment to the street, where Officer Davis, riding by, identified appellant as the person who had sold her the cocaine. Appellant was placed under arrest, and Officer Green, the transport officer, searched him, finding a ziplock bag containing a piece of rock cocaine in appellant's pants pocket.

Appellant did not testify at trial, but at the suppression hearing he gave the following account. After returning home from work he had gone to the store. On his way back from the store he passed by his aunt's apartment at 3253 23rd Street on the 22nd Street side; she was in the window and asked him for a cigarette. Appellant went up to her apartment and began talking with his aunt and uncle there. Appellant stated that he did not make it "a habit" to go over to his aunt's, but he did "check on" his uncle and aunt "once or twice a week." A minute or thirty seconds after he arrived at the apartment there was a knock on the door. Appellant testified that he opened the door and that police officers appeared with handguns and shotguns. The officers did not display any warrant, nor did they request permission to enter the apartment, although they did identify themselves as police. They pushed their way inside the apartment, and one man grabbed appellant by his shirt, shoved him up against a wall, proceeded to search appellant's pockets and socks, and then opened and dropped appellant's pants. One of the officers told appellant he was not under arrest but asked him to walk outside. The officer then escorted appellant outside the apartment building while holding onto him by the back of his pants.

Appellant's uncle, Samuel Rose, testified both at the suppression hearing and at trial. He said that he lives with his sister Betty Jean Mack, appellant's aunt, at 3253 23rd Street, S.E. He added that appellant visited the apartment every other day, or once or twice a week. Rose also testified that he visited appellant at the home of appellant's mother, where appellant lived. Rose confirmed that appellant had opened the door when there was a knock and that the police officers then rushed in, pinned appellant against the wall, and searched him, dropping appellant's trousers.

The trial court denied appellant's suppression motion. The court credited appellant's testimony that appellant, not a woman (as Officer Jones had testified), had answered the door when the police knocked. The court did not make any finding as to whether appellant or anyone else had consented to the officers' entry into the apartment. The court did find, however, that the "combination of the description given by Officer Davis as well as the physical location was more than enough to establish probable cause." The court also found that there were exigent circumstances, not in the sense that there was imminent danger, but insofar as the police needed to prevent destruction of evidence and make an identification, because "the police don't know who this guy is." The court ruled that under these circumstances the police, upon seeing appellant across the threshold, had probable cause or at least reasonable suspicion that justified taking appellant into custody. Moreover, the court "seriously questioned the appellant's having any standing about being hauled out of his aunt's home under those circumstances," although the court did not make a formal finding as to whether appellant had standing to object to the warrantless entry. Finally, the court concluded that even if there had been an unlawful arrest, the subsequent identification procedure was not tainted because the undercover officer had had plenty of opportunity to observe appellant.

II.

A.

We note at the outset that on appeal the government has abandoned any claim that the detention and search of appellant in his aunt and uncle's home was justified by exigent circumstances, as the trial court ruled. Nor has the government renewed on appeal its claim, which the trial court did not address, that everyone concerned had consented to the warrantless entry.⁶ Furthermore, the government acknowledged at oral argument that if appellant had standing to challenge the officers' warrantless — and thus illegal⁷ — entry, then the subsequent seizure and ride-by identification of appellant, as well as the plastic bag of cocaine found upon appellant, would be tainted by the illegality of the entry and thus would have to be suppressed.⁸ The government, therefore, has chosen to rest its argument in support of the trial court's ruling solely on the proposition that appellant lacked standing to object to the officers' warrantless entry.⁹

As we noted above, the trial court did not make factual findings or explicitly rule on the issue of appellant's standing. The trial court's failure to consider appellant's standing in more detail, however, may have been due, at least in part, to the government's failure to contest standing at the outset. Although appellant, in his motion to suppress, alleged that he had "standing to challenge the legality of the entry," the government's opposition did not contest standing. Indeed, the government did not even mention standing until the prosecutor did so briefly in oral argument at the end of the suppression hearing. Defense counsel at that point indicated she had understood the government was conceding the issue — an understanding that may have caused counsel to fail to present additional evidence.

The question, then, is whether we can rule on the standing issue on this record. In principle, of course, the trial court — not the appellate court — finds facts. But this court may rule on the standing issue as a matter of law, even if the trial court has not made essential findings of fact, if the evidence of standing is sufficient and uncontroverted. See Martin v. United States, 567 A.2d 896, 902 (D.C. 1989), appeal after remand, 605 A.2d 934 (D.C.), cert. denied, ___ U.S. ___, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992). That is the case here. Before looking at the evidence, however, it is necessary to inform the analysis by reference to the applicable law.

B.

Standing to object to a search or seizure as a violation of constitutional rights "depends on whether the person claiming the protection of the Fourth Amendment `has a legitimate expectation of privacy in the invaded place.'" Lewis v. United States, 594 A.2d 542, 544 (D.C. 1991) (quoting Rakas v. Illinois, 439 U.S....