Moore v. United States
468 A.2d 1342
D.C.
1983
Check Treatment

*1 Evans, specifically: novelty forth in the suit, Jr., experience MOORE, Appellant, of the the difficulty Samuel attorneys the ability participating of involved, customary and law the students STATES, Appellee. UNITED

fee and the time and labor involved. applied trial court then these factors to the 82-814. No. award, case before it is issuing it. a fee Appeals. District of Columbia Court of helpful, however for a trial necessary, judge adopt language analysis the of April 1983. Argued the Evans the court. We conclude Decided Dec. 1983. represents genuine order this case ef- fort the trial court to articulate

reasons underlying its award after

Appellant argues that

court’s order brief meaningfully was too

address all twelve factors. We see no rea

son to conclude the trial court did not con

sider these time in fixing honored elements appellate fees. While an court review

ing an attorney may award of fees substi

tute its judgment own for that of the trial determination,

court and make its own fee Inc., King, (5th

see McGowanv. 661 F.2d 48

Cir.1981),we find no need to do so in this

case. We have court’s reviewed trial

order and we conclude it is sufficient to adequate

demonstrate consideration

court. We cannot that the trial court say award,3

abused its discretion in making we, therefore, see no reason for still

another remand. is

Accordingly, judgment appeal

hereby

Affirmed. not, alone, standing Appellees cross-appealed arguing an amount ment does payment acceptance of the entire claim.” accord and satisfaction Inc., King, (5th judgment appeal argu- McGowan 616 F.2d renders his moot. This Hougham, Cir.1980), United States generally quoting ment is “It is ac- without merit. 13, 15-16, cepted judgment 5 L.Ed.2d rule of law that where a appealed ground damages (1960). Consequently, we conclude that on the judg- acceptance payment inadequate, acceptance pay- pellant’s awarded are unsatisfactory judg- appeal moot. ment of the amount of the ment does not render his *2 D.C., Levitt, Washington,

David A. court, pointed appellant. Currier, Atty., G. William Asst U.S. D.C., Washington, Stanley with whom S. Harris, D.C., Atty., Washington, at the time the brief was filed and the case was argued, Farrell, Michael W. Judith Hether- III, ton and J. Attys., Alvin Stout Asst. U.S. D.C., brief, Washington, were on appellee. NEWMAN, Judge,

Before Chief and NE- PRYOR, BEKER and Associate Judges. PRYOR, Judge: Associate

In April appellant Samuel Moore, aby jury pos Jr. was convicted unregistered session of an firearm and am unregistered munition for an firearm. D.C. 6-1811(a), (1978 Code -1861(c) & 1980 §§ Supp.). Having been acquitted carrying license, a pistol without a id. his § principal appeal contention1 on is that court, trial upon hearing pretrial his motion suppress, that he finding erred lacked “standing” challenge the use of a seized weapon against as him. We are evidence invited should to hold been to invoke the protection allowed rule, exclusionary and therefore reverse case We remand this for retrial. find court did err on “stand issue, ing” conclude that but nonetheless should convictions be affirmed. Police John J. Har- Metropolitan force, ling, twelve-year veteran of the was the at the government’s only witness Appellant’s stand, acquit- claim that because he was arm cannot conviction is without merit. carrying Copening pistol ted on the without a license A.2d count, unregistered (D.C.1976). of an fire- officer, away to turn manded him He testified on suppression Appellant him. again searched and once he and his evening of October search, this second stated received a Crump, Andrew partner, Officer gun my “allegedly discovered officer male, feet six Negro that a five radio claimed Essentially, appellant coat.” tall, wearing 125 pounds, or seven inches him;7 appel- “planted” coat, was stand- white hat and white trench *3 “acted as Harling that Officer stated lant ing Hope at and Good Sixteenth Street of” his came out though weapon] [the Road, S.E., in his left rear gun with a pocket. trench coat approached The officers pocket.2 trouser’s who appellant, observed vicinity and sup- to trial court denied the motion The against or description, leaning matched the “stand- appellant that lacked press, holding corner of standing near a fence on the claim. the Fourth Amendment ing” to raise Streets, Officer W S.E.3 Salvucci, Sixteenth reference to United States With uniform, in his Harling, stopped who was 2547, 65 L.Ed.2d 619 S.Ct. appellant. cruiser walked towards He appellant reasoned that (1980), the court bulge noticed a in left trench interest a allege possessory to either failed to appellant stop.4 coat and directed a it was seized or that in the this, took several from the Appellant steps away Because of person. search of officer, him Harling grabbed by but Officer did not make appellant that court concluded arm, appellant left preventing his Fourth showing that cognizable a walking away. pulled ap- The officer then had been violated. rights Amendment record, left coat pellant’s disagree hand from the trench we Upon review in, we and withdrew a load- because pocket, point the trial court on this with Appellant testimony present .38 revolver. was then ed caliber find to as- enable him arrested.5 allegations sufficient claim. a Fourth Amendment sert version Appellant presented a different standing of events. He related that while stated has often Supreme The Court approached by on the street he was Officer rights per Amendment are that “Fourth action on his Harling. Denying any evasive other constitu which, like some sonal part, recalled that his hands were assert vicariously not be rights, may tional 128, 133-34, pockets night in his trench coat because the ed.” Rakas v. a presence (1978) was cool. He denied the 58 L.Ed.2d 99 S.Ct. v. Unit Alderman bulge pocket. According ap- cases); in the left (citing additional came to him ed pellant, Harling up Officer U.S.

and, (1969). Before assert explanation, began without to search 22 L.Ed.2d the movant suppression, Finding nothing incriminating ground him.6 a search disputed “the allege commenced a first pellant, Harling must infringed an interest and seizure has surrounding search of the area. Officer [his] designed was Amendment which the Fourth appellant, then returned to com- heavy weighted appeared tape played to be down at the 2. A of the radio run was relayed suppression hearing. object. The information phoned police by an uni- in to the station tape transcript of the dentified caller. A or subsequent two addition- uncovered search 5. A suppression phone at the call was not available bullets, keys gloves some .38 caliber al right pocket. coat’s from the trench spotting appellant, a radio 3. Prior to might thought Appellant the officer 6. police of Six- another cruiser on the comer high looking drugs, given the crime been reported Hope teenth Street and Good Road neighborhood. nature of the matching description could be one that no Appellant one block of found. was seen within reported possessing location. Appellant denied the bullets also 7. against into evidence him. later introduced his left 4. The officer testified that had pocket, hand in the trench coat and the Rakas, protect. supra, ruling suppression at based its at correctly U.S. 99 S.Ct. at 429. fact that denied hearing on the He interest in the items seized. possessory In order to on a motion to prevail interest is not con- argues possessory suppress, the movant must establish both any “a who denies trolling person because that he legitimate had a expectation challenge items seized may interest in the privacy searched, in the area their into evidence if inva- introduction [sic] fact, the search was illegal. Rawlings See the seizure.” property sion of his led to v. Kentucky, of the trial government, support 2556, 2562, (1980); Rakas, 65 L.Ed.2d 633 failed ruling, argues court’s 439 U.S. at at alleged- to establish a “nexus” between 432-33. A allegation defendant’s that he illegal weapon’s search and the sei- ly body property has a interest in the item seized is appellant, to mean that zure. We take this not dispositive. Rawlings, supra, Harling probably by testifying that Officer *4 during found the his search of the weapon supra, that, the Court made it clear in order area, surrounding public did not show claim, to assert a Fourth Amendment the body seized was the fruit of the weapon defendant need not be in possession of the appellant legitimate search. had no Since seized item at the time of seizure.8 At the expectation privacy surrounding of in the time, however, same the Court abolished area, v. 388 public Speed, cf. United States the “automatic standing” doctrine of Jones 892, (D.C.1978), urged A.2d 893 it is States, 257, v. United 725, 80 S.Ct. Fourth Amend- appellant cognizable has no 4 (1960), L.Ed.2d 697 previously which had ment interest. allowed defendants in possessory cases to challenge evidence used against them at appel This is not a case in which trial, without admitting possession.9 In re lant the source of any knowledge denied of affirming the touchstone of privacy articu the item seized. Nor is this a case allegedly lated in Rakas and Rawlings, Salvucci he was appellant allege which did not Court reemphasized personal nature of Here, illegally by police. searched accord Fourth Amendment rights and explained, allegations, to he was appellant’s simply decline to use possession of a “[w]e Harling, eventually who stopped by Officer good seized as a substitute for factual find appellant weapon. searched and recovered a ing that the good owner of the legiti had a This alleged, particularity, with sufficient mate expectation of privacy in the area a search weapon during that the was seized Salvucci, 92, searched.” supra, 448 at U.S. which he person, an area in appellant’s 100 S.Ct. at 2553. requisite expectation privacy.10 had the

We must assess appellant’s appellant present cogni claim in the We hold that a instant case with principles these in mind. zable Amendment claim on these Fourth Appellant contends that the trial court in- facts.11 Salvucci, 85,100 Booth, supra, 1351, 448 1353 U.S. S.Ct. at United States v. 455 A.2d charged (D.C.1983). the defendants were in a multi- ple count indictment with unlawful of stolen mail. The contraband was discovered throughout this section 11.We have endeavored apartment a search of an rented opinion stating issue as to avoid mother of one defendant. Id. “standing” to raise the whether had Supreme Fourth Amendment claim. The Court 9. The Court reasoned that the rule “serve[d] inquiry has into a defendant’s decided only to afford a windfall to defendants whose logical “standing” put not on does “sound[] Fourth Amendment have not been violat- footing” the issue of whether his own substan- Salvucci, supra, ed.” 448 U.S. at 100 S.Ct. rights were violated. tive Fourth Amendment (emphasis original). at 2554 Rakas, supra, 99 See 439 U.S. at S.Ct. at 427-29. have thus avoided use of the We government concede, 10. appears to as it States, But see Austin v. United 433 must, term. legitimate expecta- had a (D.C.1981). A.2d 1081 privacy pocket. tion of in his trench coat See

1346 to remand at The officer then into point

We decline this be- coat, pulled out a load sufficiently developed cause the record is to weapon, placed ed under arr enable us to rule on the appel- merits of undue Appellant places weight est.14 Brown v. claim. See lant’s for a argument in order detention 590, 604, 45 416 L.Ed.2d Terry stop arrest, rather than an to be compare (1975); clothing the outer of a officer must “frisk” at 2554. We believe that our suspect prior recovery weap actual Ohio, v. Terry inquiry guided by should be Lyons See required. on. This U.S. L.Ed.2d 889 United States, (D.C. 315 A.2d 562-63 (1968).12 States, Murphy v. United 1974); 293 A.2d testified, also see Adams (D.C.1972); 850-51 court police found13 that re- officers Williams, man, wearing ceived a radio of a Gaskins (1972); L.Ed.2d 612 clothing possessing distinctive certain States, (D.C.1970). Given 262 A.2d physical characteristics, carrying recounted, it is also the facts that we have officers, at a specified long location. The con claim —of contrary not — force, time the police spotted veterans of that an anonymous stitutional significance scene, in a high leading near the crime tipster provided the information Lawson United area, and search. stop substantially matching report- United (D.C.1976); A.2d ed description. Appellant’s coat *5 Walker, (D.C. States 294 A.2d bulge seemed to as if it was down weighted denied, 1972), cert. 414 U.S. by a Because heavy object. these facts (1973). The 38 L.Ed.2d 245 officer’s constitute reasonable grounds suspicion the circum actions were reasonable under Terry, supra, Harling under Officer was stances. allowed to detain when forcibly Affirmed. he stop requested. did not as teaches, however, by prior to the search does Rakas traditional strained the officer fact; “standing” (injury See, holding. e.g., claim elements in Dis not from this detract legal rights M.M., one’s own interests are 407 A.2d trict of Columbia v. parties) stake rather than those of are third (D.C.1979); 382 A.2d Harris encompassed by substantive Fourth Amend- 1978). (D.C. 1018-19 Rakas, ment doctrine. 99 case, govern- S.Ct. at 428. the instant following findings of 13. The court made the dispute ment does not suffered fact, “injury an Harling. in in fact” the search Officer approached I officer the de- note that the implication government’s The of the stopping his car. I find that the fendant after position, therefore, is that was seek- stop. The officer was in officer told him to ing vicariously to raise of others at subject started to walk uniform also. The pretrial hearing. there But were no “oth- away. grabbed him the arm The officer case; govern- ers” in this the result of the immediately pulled and arm, position anyone ment’s would be to foreclose into— pocket and im- challenging the left arm out of the merits of In- this search. deed, ruling effectively mediately the trial court’s insured not be reached into the of the de- gun that the merits of the search determined, would fendant therein.... The and found appeared and that the effect of terrorem officer that the left noted possible exclusion of the evidence would be bulging. weighted it be down. He noticed removed. Given dent, version of the inci- government and the fact that the based appellant was arrested 14. Because we find that its case on construc- actual —not recovery weapon, of the after the search and weapon, any oth- result prob to consider whether tive— we no occasion er ble. here than the one we reach be untena- would the search. Illi able cause accrued before Cf. Gates, — U.S. —, nois (1983). L.Ed.2d 527 find, therefore, 12.We appellant prior not arrest to the search. Of course, mere fact that was re NEWMAN, concurring: (1978), Chief is to the Judge, contrary. L.Ed.2d fact that contends the evidence defendant government’s Where the contention from his person was not seized does that as a result of a search warrantless standing. deprive him person the defendant certain evi seized, dence has stand defendant move suppression. Nothing

United States v. L.Ed.2d 619 or (1980), Rakas