United States v. Johnson

• Decision Date: 05 August 1985
• Docket Number: No. 81-1095.,81-1095.
• Citation: 496 A.2d 592
• Parties: UNITED STATES, Petitioner, v. Harvey L. JOHNSON, Respondent.
• Court: D.C. Court of Appeals

496 A.2d 592

UNITED STATES, Petitioner, v. Harvey L. JOHNSON, Respondent.

No. 81-1095.

District of Columbia Court of Appeals.

Argued September 14, 1984.

Decided August 5, 1985.

Thomas J. Tourish, Jr., Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on brief, for petitioner.

Michael A. Stern, Washington, D.C., appointed by the court, for respondent.

Before MACK, FERREN and BELSON, Associate Judges.

FERREN, Associate Judge:

On November 23, 1983, a division of this court, with one judge dissenting, reversed respondent's conviction for carrying a pistol without a license, D.C.Code § 22-3204 (1981). Johnson v. United States, 468 A.2d 1325 (D.C.1983). The issue at the first hearing, and upon rehearing, is whether a gun and ammunition recovered from respondent's possession should have been suppressed as evidence obtained from an unlawful Terry¹ seizure. We are now persuaded that the evidence was lawfully seized; accordingly, we vacate our earlier opinion and judgment and affirm respondent's conviction.

I.

At approximately 10:30 p.m., police officer Lonnie Turner and two other officers, patrolling on motor scooters, passed a 1967 Cadillac parked with three men inside. According to Turner, the officers' suspicions were aroused by the lateness of the hour, the fact that the neighborhood was known for frequent robberies, their experience that robberies in the area often were committed by men working in groups of two or three, the bad paint and body damage of the car (representing a type of vehicle frequently used in robberies), and the fact that they had never seen the car before, although they were familiar with the neighborhood.

The officers decided to make a "spot check" of the car. As they approached, the driver got out and walked slowly toward the rear of the car. Officer Turner called out to the driver, "come here, police officer." The driver instead ran to the doorway of a nearby house. Two officers pursued him, while the third remained with the car until his partners returned with the driver.

Officer Turner testified that the driver's flight further aroused his suspicions about respondent and the other passenger in the car. The officers ordered the two men out of the car. While exiting, respondent reached for a green bag beside him on the front seat. Turner took the bag from him, placed it on the hood of the car, and began patting it down for weapons. As he did so, respondent told him to "dump it on the hood." Turner handed the bag to respondent, who emptied its contents onto the hood. Turner saw several rounds of .38 caliber ammunition fall out and proceeded to pat down respondent's clothing. He recovered a .38 derringer pistol, containing two live rounds of ammunition, from inside respondent's belt, as well as four more bullets in respondent's right front pocket. The police then placed respondent under arrest.

Respondent moved to suppress the pistol and ammunition. The trial court denied this motion, concluding that the officers' seizure of respondent had been a reasonable response to "the circumstances as they existed at that time," including the driver's flight.

On appeal to this court, respondent argued that the officers lacked reasonable and articulable suspicion warranting his seizure. The government contended that the driver's flight, when coupled with the officers' previous observations, reasonably heightened the officers' suspicions that "criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968); thus, the police had a reasonable basis for detaining the men and conducting a limited search to determine whether they were armed.

We concluded that:

a situation in which persons unfamiliar to the police are parked in a car late at night in a high crime area does not, without more, present specific, articulable facts warranting suspicion of criminal activity. . . . Thus, unless the flight evidence is usable here against appellant, the government's case supporting a Terry seizure will fall short.

Johnson, 468 A.2d at 1327-28 (footnote and citations omitted). We further concluded that the driver's flight was provoked by an unlawful Terry seizure — the officers' command (without reasonable suspicion) to "come here" — and thus was the "`"fruit" of official illegality.'" Id., 468 A.2d at 1328 (quoting Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963)). Accordingly, we held that the driver's flight could not "be used to . . . create the critical mass of circumstances necessary to justify the subsequent apprehensions of the driver and the passengers (including appellant)," id., and that "[t]he trial court, therefore, should have granted appellant's motion to suppress evidentiary use of the pistol and ammunition." Id. at 1329.

II.

The government petitioned for rehearing, urging this court to consider "the well established principle that a defendant may not challenge a violation of someone else's Fourth Amendment rights." See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Accordingly, says the government, even if the driver could challenge use of the flight evidence in attacking the propriety of his own Terry seizure, his companions, including respondent, had no legitimate expectation of privacy in the driver's person that would permit them to invoke his right to suppress the flight evidence. It follows, according to the government, that the propriety of respondent's Terry seizure must be evaluated by reference to all the circumstances — including the driver's flight — since respondent was obviously associated with the driver in a venture of some sort.

A.

In Rakas, the Supreme Court held that "`Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.' " Id. at 133-34, 99 S.Ct. at 425 (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176 (1969)) (other citations omitted). Thus, before seeking to exclude evidence as a "`fruit' of official illegality," a movant must show that his own fourth amendment rights have been violated. United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2444, 65 L.Ed.2d 468 (1980); Rakas, 439 U.S. at 140, 99 S.Ct. at 428; see Moore v. United States, 468 A.2d 1342, 1344-45 (D.C.1983). As the Court made clear in Rakas, the question whether one's own rights have been violated is a matter of substantive fourth amendment law. 439 U.S. at 139, 99 S.Ct. at 428. That question properly turns on whether the challenged conduct invaded a legitimate expectation of privacy held by the party seeking exclusion. Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633 (1980); Payner, 447 U.S. at 731, 100 S.Ct. at 2444; Moore, 468 A.2d at 1345; United States v. Davis, 199 U.S.App.D.C. 95, 107-08, 617 F.2d 677, 689-90 (1979).

B.

We reaffirm our conclusion that the police officers had no legitimate basis for detaining and searching respondent before the driver's flight. Johnson, 468 A.2d at 1327-28. Thus, we must determine whether respondent had any legitimate expectation of privacy in the driver's person, see United States v. Brown, 743 F.2d 1505, 1507 (11th Cir.1984), in order to decide whether we were correct, initially, in concluding that the court could not properly consider the driver's unlawfully provoked flight as an additional factor relevant to determining whether respondent's conduct was sufficiently suspicious to warrant a Terry investigation.

We conclude that respondent had no such legitimate expectation. "Unlike a house, a hotel room, an automobile or a briefcase, one cannot acquire a right to exclude others from access to a third person." Brown, 743 F.2d at 1507. Clearly then, even if the police unlawfully provoked the driver's flight with the command to "come here," the police "infringed [no] interest of [respondent's] which the Fourth Amendment was designed to protect." Rakas, 439 U.S. at 140, 99 S.Ct. at 429. Accordingly, the officers were free to consider the driver's flight in determining whether they had a reasonable, articulable suspicion, based on all the circumstances, that would justify detaining the driver's companions, including respondent. Cf. Davis, 199 U.S.App.D.C. at 107-08, 617 F.2d at 689-90 (evidence and statements obtained illegally from first defendant may be used to find probable cause to arrest second defendant).²

Put another way, Rakas requires the court to resolve whether an accused can invoke another person's legitimate expectation of privacy before the court considers whether that other person's rights have been violated. If the accused cannot properly do so, that ends the inquiry. In this case, therefore, because there is no basis for respondent to invoke the fleeing driver's right not to be stopped, the driver's flight must be considered without any question of taint. In sum, because of Rakas, the premise of our original opinion — unlawfully provoked flight — is not reachable and thus is not properly in this case; there is no cognizable illegality to challenge.

Our dissenting colleague, reflecting the concern inherent in our first opinion, makes a telling point: the result here is irrational. "[E]ven though the driver's flight may not be used to seize the driver (since he may `suppress' his own flight), that flight may still be used" by the police in evaluating whether there are grounds to "seize a companion whose behavior is otherwise" insufficiently suspicious to warrant a Terry detention. Post at 599 n. 4. We agree that the result is irrational, and thus arguably unjust, but we understand Rakas to compel that result.³

C.

We therefore must determine, finally, whether the driver's flight, when added to the other factors arousing suspicion, justified the seizure of respondent under Terry. This inquiry presents three...