United States v. Johnson

496 A.2d 592, 1985 D.C. App. LEXIS 449

• Court: District of Columbia Court of Appeals
• Decided: August 5, 1985
• Docket: 81-1095
• Status: Published

Opinions

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 ear. 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 ac-tivity_ 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 evi-dentiary 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 usé 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 Ra-kas, 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 separate questions: (1) whether flight from authority is germane to determining whether a police officer’s suspicion is reasonable under Terry; (2) if so, whether the driver’s flight, under the circumstances here, was reasonably imputable to respondent; and (3) if so, whether the trial court correctly ruled that the officers’ seizure of respondent was a reasonable response to “the circumstances as they existed at the time.” We answer all questions in the affirmative.

First, we have previously determined, as a general proposition, that flight from authority—implying consciousness of guilt—may be considered among other factors justifying a Terry seizure. See Stephenson v. United States, 296 A.2d 606, 609-10 (D.C.1972) (collecting eases), cert. denied, 411 U.S. 907, 93 S.Ct. 1535, 36 L.Ed.2d 197 (1973). In Stephenson, we noted that this court has

unfailingly considered certain factors in determining whether an on-the-street stop for questioning by a police officer was reasonable. These are: (1) the particular activity of the person stopped ... which the investigating officer has observed, (2) that officer's knowledge about (a) the activity and the person observed and/or (b) the area in which the activity is taking place, and (3) the immediate reaction or response of the person approached and questioned by the officer.

Id. at 609 (footnote omitted) (emphasis added).

Second, the question of imputation must be answered by reference to all the facts; one person’s flight is imputable to another only if other circumstances indicate that the flight from authority implies another person’s consciousness of guilt as well.⁴ Here, we have the following facts: the officers observed respondent and his companions parked in an unfamiliar, damaged car at a late hour in a high crime area where—in the officers’ experience—robberies often were committed by men in groups of two or three driving such a vehicle. The driver literally fled after the officers issued a command to “come here”; he did not merely respond calmly or walk away.

Under the circumstances, the officers reasonably could conclude that all three men were associated in a venture of some sort, whether innocent or criminal, and that the driver’s flight when they confronted him, implying consciousness of guilt, reflected the mind set and activity of those with whom he was associated under somewhat suspicious conditions. See Franklin v. United States, 382 A.2d 20, 22 (D.C.) (Terry stop of three appellants justified where one fled on foot from officers monitoring lookout for robbery suspects, then entered car in which other appellants were sitting, and car sped off), affd in relevant part, 392 A.2d 516 (D.C.1978), cert. denied, 440 U.S. 948, 99 S.Ct. 1428, 59 L.Ed.2d 637 (1979); Smith v. United States, 295 A.2d 64, 65-66 (D.C.1972) (flight of companion imputed to appellant where officers earlier had observed suspects looking into parked cars and later saw them leave zoo, with appellant carrying paper bag he did not have before), cert. denied, 411 U.S. 951, 93 S.Ct. 1932, 36 L.Ed.2d 414 (1973) (footnote omitted).⁵

Finally, we agree with the trial court that the “totality of the circumstances, including the flight of [respondent’s] companion,” provided a reasonable basis for an investigatory detention and related search of respondent. Although we reaffirm 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, and thus does not justify a Terry seizure,” 468 A.2d at 1327, we conclude that the driver’s flight, when added to the other circumstances, created a critical mass of suspicious activity — a “minimal level of objective justification”⁶ sufficient to warrant further investigation, including a brief detention of the men still in the car.⁷

Affirmed.

1 . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

2 . Respondent alternatively argues that he had "automatic standing” under Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). In Jones, the Supreme Court held that any person charged with a possessory offense could challenge the search which produced evidence against him. Jones was overruled by United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), but respondent notes that he was charged and convicted in 1975, five years before Salvucci. Respondent accordingly contends that Jones governed lower courts at the time of his trial and thus conferred standing upon him to challenge the legality of the seizure of the driver.

In fact, however, respondent, during argument on the motion to suppress, did not premise his Terry argument on the inappropriate consideration of the driver’s flight. Both parties and the trial court appear to have assumed that the police were entitled to consider the driver's flight in determining whether to stop and frisk the three men. The trial court expressly premised its conclusion that the officers had acted reasonably in part on the driver’s flight. Thus, under the defense theory of the case, the sum of the officers’ observations, including the driver’s flight, did not constitute a sufficient basis for a Terry seizure. The issue of the legality of the initial seizure of the driver was not raised until we chose to recognize it sua sponte, on direct appeal, in 1983. Salvucci, which abolished the "automatic standing” rule, was decided in 1980 and thus was controlling law when the question of "standing” was first raised. Cf. United States v. Ross, 210 U.S.App.D.C. 342, 347-48, 655 F.2d 1159, 1164-65 (1981), rev’d on other grounds, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (applicable law of standing to raise fourth amendment claims is law in force at time that defendant raises claim).

3 . Rakas, therefore, creates the possibility for a police officer deliberately to violate one person’s rights during a street encounter, such as the one at issue here, in the hope of provoking a response that will tend to incriminate that person's companions and thus justify a Terry seizure that otherwise would be unlawful. Cf. United States v. Payner, 447 U.S. 727, 730, 743, 100 S.Ct. 2439, 2443, 2450, 65 L.Ed.2d 468 (1980) (respondent lacked standing to suppress evidence recovered during illegal search of third person despite court’s finding that government had deliberately counseled its agents that "Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties"). We perceive no deliberate violation here, but the possibility, since Rakas, is there. ’

4 . If, for example, a police officer approaches two persons chatting at a bus stop and speaks to one of them who immediately runs away, there would be no basis, without more, for the officer to detain the person who remained. See In re Appeal No. 113, 23 Md.App. 255, 326 A.2d 754 (1974) (no basis for Terry stop of appellant when one of his two companions, carrying paper bag, fled as police approached trio walking down street one morning).

5 . Lyons v. United States, 221 A.2d 711 (D.C.1966) —a pre-Terry, probable cause case on which our dissenting colleague primarily relies—is inappo-site. There, a police officer saw one occupant of an automobile, Spriggs, who was “known to the officer as a thief and a convicted narcotics user," id. at 711, leave the car, look around in a suspicious manner, enter a building for ten minutes while the car circled the block, return to the car after looking "up and down the street," id., and then, as the officer approached the car, place in his shoe a dark envelope which the officer "suspected of being narcotics.” Id. at 712. The officer arrested Spriggs and also arrested the other two occupants of the car, the driver and appellant, Lyons, who was later prosecuted as a narcotic vagrant once an examination of his arm disclosed needle marks.

The question was whether, assuming probable cause to arrest Spriggs, the officer also had probable cause to arrest Lyons. This court held he did not, since "[t]here was no evidence that Lyons had any knowledge of the possession of the narcotics by Spriggs,” id., and “Lyons’ only connection with Spriggs was that they were both occupants of the same car.” Id. We noted that the circumstances "may have given rise to a suspicion that Lyons was engaged with Spriggs in some illegal narcotic activity, but mere suspicion will not justify an arrest.” Id. This language, focusing on probable cause, indicates that if Terry (which was decided two years later) had been the law at-the time, this court might have concluded that the police had a reasonable suspicion of criminal activity, based primarily on Spriggs’ activity, that would justify a brief detention of Lyons and the driver to investigate further.

6 . Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984); see United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (plurality opinion) (“particularized and objective justification”).

7 . Our dissenting colleague characterizes respondent's behavior as "entirely innocent," post at 600, and thus perceives that we justify respondent’s Terry seizure on the ground that a passenger in a car may be seized if the only basis for police suspicion is the driver’s flight on foot when the police attempt to stop him. See post at 600-601 & n. 8 (citing cases where flight was the only factor). That analysis of our position is incorrect. See supra note 4 and accompanying text. All the circumstances, not just the driver's flight, are relevant. That the other circumstances, without the flight, are not enough to warrant an articulable suspicion of criminal activity does not mean that the various factors noticed by the police, taken together, are wholly unsuspicious and irrelevant; they cannot be called "entirely innocent.” Without the flight, these other factors are consistent with an innocent or a criminal explanation and thus do not provide "some minimal level of objective justification" for a seizure. INS, 104 S.Ct. at 1763. But with the flight, the inference of criminal activity, based on all the circumstances, becomes reasonable.