*2 BELSON, MACK, Before FERREN Judges. Associate FERREN, Judge: Associate a division of this November On court, dissenting, judge one reversed' carrying pis- conviction for respondent’s license, D.C.Code tol without § States, 468 v. (D.C.1983). The issue at upon rehearing, wheth- hearing, and first gun recovered er a and ammunition should have been possession respondent’s from an obtained as evidence suppressed Terry1 per- unlawful seizure. We are ammunition, now two live rounds of from inside lawfully belt, suaded that the evidence respondent’s as well as four more seized; accordingly, our we vacate earlier respondent’s right bullets in pocket. front opinion respon- judgment and affirm placed then respondent under dent’s conviction. arrest. *3 Respondent suppress moved pistol to the I. and ammunition. The trial court denied approximately p.m., police At offi- 10:30 motion, concluding that the officers’ officers, cer Lonnie Turner and two other respondent seizure of been reason- patrolling scooters, passed on motor a 1967 response able to “the circumstances as parked with three Ac- men inside. Cadillac they time,” existed at that including the Turner, cording to suspicions the officers’ flight. driver’s hour, by were aroused the lateness of the court, appeal On respondent to this ar- neighborhood the fact that the was known gued that the officers lacked reasonable frequent robberies, experience for their suspicion and articulable warranting his robberies the area often were com- government seizure. The contended that working groups mitted men of two or coupled driver’s with the three, paint body damage bad and observations, previous officers’ reasonably (representing type car of vehicle fre- heightened suspicions the officers’ robberies), quently used and the fact “criminal activity may be afoot.” Terry v. before, they had never seen the car Ohio, 1868, 1884, 20 S.Ct. although they neigh- were familiar with the (1968); thus, L.Ed.2d 889
borhood.
detaining
reasonable basis for
men
and
“spot
to
officers decided make a
conducting a limited search to determine
they
check” of
approached,
the car. As
whether
were armed.
got
slowly
out and walked
toward
We concluded that:
rear
the ear.
Turner
Officer
called
persons
situation which
unfamiliar
driver,
to
out
here, police
to
“come
offi-
parked
a car late at'
cer.” The
driver instead ran
the door-
night
not,
high
crime area does
with-
way
nearby
of a
house,
pur-
Two officers
more,
him,
present
out
specific, articulable
sued
while
third remained with the
warranting
facts
of criminal ac-
partners
until his
returned with the
Thus,
tivity_
unless the
evi-
driver.
against appellant,
dence is usable here
Officer Turner testified
driver’s
government’s
supporting
case
Ter-
flight further
suspicions
aroused his
about
ry seizure will fall short.
respondent
passenger
in the
Johnson,
(footnote
A.2d
1327-28
car. The officers ordered the
out
two men
omitted).
citations
We further concluded
exiting,
respondent
the car. While
provoked by
that the driver’s
green bag
reached for a
beside him on the
unlawful
seizure—the officers’ com
him,
bag
front seat. Turner took the
(without
suspicion)
mand
placed
car,
began
it on the hood of the
‘“
“come here”—and thus was
“fruit”
patting
weapons.
so,
it
down
As he did
” Id.,
respondent
illegality.’
of official
him
it
“dump
told
on the
(quoting Wong
hood.” Turner
Sun
bag
respon-
handed
407,
dent,
416,
emptied
who
S.Ct.
its contents onto the
(1963)). Accordingly, we
hood. Turner saw
L.Ed.2d 441
held
several rounds of .38
“be
proceeded
caliber ammunition fall out
driver’s
could not
used
that.the
(cid:127)
pat
respondent’s clothing.
down
...
circum
He re-
create the critical mass of
derringer pistol,
subsequent
covered a .38
containing
necessary
stances
1,
Ohio,
1868,
(1968).
passen
question
Id. at 1329. (1980); Payner, 447 U.S. at II. 2444; Moore, 1345; 468 A.2d at rehearing, government petitioned Davis, 107- States v. U.S.App.D.C. “the well es- urging this court to consider 617 F.2d defendant principle that a tablished someone else’s challenge a violation of B. See Rakas v. rights.” Amendment Fourth *4 po- our We reaffirm conclusion that Illinois, U.S. 99 S.Ct. legitimate lice had no basis for (1978). Accordingly, says the L.Ed.2d 387 detaining searching respondent before government, if the even driver could chal- Johnson, flight. 468 A.2d at driver’s flight usé in attack- lenge evidence Thus, must seizure, 1327-28. determine wheth- Terry his ing propriety own expecta- had respondent any legitimate er companions, including respondent, see person, in privacy expectation privacy in the tion of legitimate driver’s Brown, v. them to United States 743 F.2d person permit that would driver’s Cir.1984), (11th decide right flight to evi- order to invoke his correct, follows, govern- initially, It to according dence. whether we were con- ment, propriety respondent’s cluding properly that could court Terry unlawfully seizure must be evaluated refer- provoked the driver’s consider including ence all flight as an additional factor relevant circumstances — respondent the driver’s respondent’s determining whether conduct —since obviously associated with the driver sufficiently suspicious to warrant venture of some sort. investigation.
A. respondent had no We conclude legitimate expectation. “Unlike a Rakas, Supreme Court held “ house, room, an automobile or a hotel rights per ‘Fourth Amendment briefcase, acquire right one cannot rights which, sonal like consti some other per from access to a third exclude others may vicariously rights, tutional as be ” Brown, Clearly F.2d at 1507. son.” Id. at 133-34, serted.’ at 425 99 S.Ct. unlawfully pro then, if the even Alderman United (quoting flight with the command voked the driver’s 966-67, here,” police “infringed to “come (other [no] (1969)) omit citations [respondent’s] the Fourth which interest ted). Thus, seeking before to exclude evi “ Ra designed protect.” Amendment was illegality,” dence ‘fruit’ of official kas, 429. Ac must show that his fourth movant own were free to consid cordingly, the officers rights amendment violated. have been determining wheth er driver’s Payner, United States reasonable, suspi articulable (1980); er circumstances, cion, all Rakas, see 428; 99 S.Ct. at com detaining the driver’s would Moore Davis, including respondent. panions, (D.C.1983). As made 1344-45 the Court Cf. 107-08, 617 F.2d at Rakas, U.S.App.D.C. at question one’s clear whether (evidence and statements obtained rights have is a matter own been violated of, used first defendant be illegally from law. 439 substantive fourth amendment probable to find arrest cause to second whether grounds there are to “seize a com- defendant).2 panion whose behavior is otherwise” insuf- ficiently suspicious to warrant a de- Rakas requires Put way, another Post tention. agree n. 4. court to resolve can whether accused irrational, the result arguably and thus person’s legitimate expecta- invoke another unjust, but we Rakas privacy compel tion of the court considers understand before person’s rights whether that other have that result.3 If prop- been violated. the accused cannot so, erly inquiry. do that ends the In this C. case, therefore, because there is no basis determine, finally, We therefore must respondent fleeing to invoke the driv- flight, whether the driver’s added right stopped, er’s not to driver’s arousing suspicion, the other factors justi- flight must be considered without Terry. respondent fied the seizure of under sum, because of Ra- question taint. presents inquiry separate This three kas, ques- premise original opinion— of our (1) tions: whether provoked flight authority unlawfully not reacha- —is germane determining properly case;
ble and thus is not whether a cognizable is no illegality there to chal- officer’s Ter- under lenge. so, ry; if whether the driver’s under the circumstances was reason- dissenting colleague, Our reflecting the *5 ably imputable respondent; (3) so, and if opinion, concern inherent in our first makes correctly whether the trial court ruled that telling point: a the result here is irrational. respondent the officers’ seizure of was a though flight may the driver’s “[E]ven (since response to “the circumstances be used to seize the driver he ‘suppress’ they flight), his as existed at flight may own that the time.” We answer by still be used” in evaluating questions in all the affirmative. Respondent alternatively argues recognize sponte, that he had we chose to it sua on direct Salvucci, standing” appeal, "automatic under Jones v. United in 1983. which abolished 257, 725, rule, standing” 362 U.S. 80 S.Ct. 4 "automatic L.Ed.2d 697 was decided in 1980 Jones, (1960). Supreme controlling question In Court that and thus was law when the any person charged "standing” possessory of raised. a offense first United States Cf. Ross, 342, 347-48, challenge U.S.App.D.C. produced could 210 the search evi- 655 F.2d which 1159, (1981), grounds, against rev’d by dence 1164-65 on other him. Jones was overruled 798, 2157, Salvucci, 83, 456 U.S. 102 572 S.Ct. 72 L.Ed.2d United States v. 100 S.Ct. 2547, (1982) standing (1980), (applicable law of to raise respondent L.Ed.2d 65 619 but fourth amendment claims is law in force at time charged notes that he was and convicted in claim). that 1975, defendant raises years Respondent five before Salvucci. accordingly governed contends Jones lower Rakas, therefore, possibility creates the for a courts at the time of his trial and thus conferred deliberately per- one officer violate standing challenge legality him to of encounter, rights during son’s a street such the seizure of the driver. here, hope provoking a the one at issue response in the of fact, however, respondent, during argu per- that will tend incriminate that suppress, pre ment on the motion did not justify Terry companions thus a sei- son's Terry argument mise inappropriate on the would be unlawful. zure that otherwise Cf. flight. of parties consideration the driver’s Both 743, Payner, United States appear and the trial court to have assumed 2439, 2443, 2450, L.Ed.2d 468 were entitled to consider the driver's (1980) standing (respondent lacked flight determining whether to and frisk during illegal evidence recovered search of third expressly prem three men. The trial court finding government person despite court’s ised its conclusion that the officers had acted deliberately agents that counseled its Thus, part reasonably flight. on the driver’s standing per- "Fourth Amendment limitation case, theory under the defense of the the sum of purposefully an mits them to conduct unconsti- observations, including the officers’ the driver’s tutional search and seizure of one individual did constitute sufficient basis for against parties"). order to obtain evidence third legality seizure. The issue of perceive but deliberate violation ’ initial seizure of the Rakas, driver was not raised until possibility, there. since high aged late hour in a crime area
First,
deter
car
previously
we have
experience—robber-
where—in the officers’
mined,
general
proposition,
as a
groups
of
ies
men in
often were committed
authority—implying consciousness
other
among
driving
or
considered
two
three
vehicle.
guilt—may be
See
literally
seizure.
fled after the officers issued
justifying
factors
here”;
A.2d
he did not
Stephenson
command to “come
v. United
eases),
(D.C.1972) (collecting
away.
merely respond calmly walk
609-10
or
denied,
cert.
circumstances, the
offi
Under
Stephenson,
L.Ed.2d
that all
reasonably
cers
could conclude
court has
noted that this
in a venture of
three men were associated
certain factors
unfailingly considered
sort,
criminal,
innocent or
some
whether
on-the-street
determining
whether
con
driver’s
questioning by officer
stop for
him,
implying
fronted
consciousness
(1)
par-
are:
These
was reasonable.
guilt,
activity
the mind set and
reflected
stopped
...
activity
person
ticular
he
under
was associated
those
whom
has
investigating officer
ob-
which
suspicious
conditions.
somewhat
served, (2)
knowledge about
that officer's
Franklin
(a)
person observed
activity and the
justi
(D.C.) (Terry stop
appellants
of three
(b)
activity
in which the
the area
and/or
fied
fled on foot from
where one
taking place,
the immediate
suspects,
monitoring
robbery
lookout
ap-
response
person
reaction
appellants
then entered car which
proached
questioned by the
officer.
off),
sitting,
sped
affd
omitted)
(footnote
(emphasis
add-
Id.
(D.C.1978),
part,
tivity, thus does agreement opinion’s application of seizure,” 468 A.2d conclude the standing requirement and its determi- flight, that the driver’s when added to the nation of the of circumstances, application effect on other created a critical mass disposition appeal. this suspicious Therefore I activity “minimal level of —a C, objective justification”6 join A, II portion sufficient to war Parts II and the investigation, rant further including brief II B that holds did not still in detention the men the car.7 a legitimate expectation invade of privacy by appellant. Affirmed. BELSON, Judge, joining Associate I.
part and concurring in the result.
MACK,
Judge, dissenting:
Associate
I
join
am unable to
unreservedly
majority’s admittedly
irrational con-
opinion
view,
of the court.
I remain of the
clusion in
this case
reached not because
expressed my dissent from this division’s
Supreme
holding
of the
in Rakas
Court’s
opinion
earlier
on
appeal,
that we
Illinois,1
pre-
but because of an erroneous
should not reach the issue of
legality
mise embraced
this court in Johnson
driver because
12—that the
failed to raise
outcome
Johnson’s motion
that issue either
before
trial
appeal.
gun
court
on
and ammunition
Johnson v. Unit-
found
ed
person
It
turn
legality
should
(which
later)
factor).
years
posi-
that if
was decided two
was the
That
of our
time,
might
supra
had been the law
at-the
this court
tion
incorrect. See
note 4
accom-
circumstances,
just
panying
have concluded that the
text. All
a reasonable
activity,
driver's
primarily
criminal
are relevant. That the
cir-
*7
cumstances,
Spriggs’ activity,
flight,
enough
on
the
not
justify
that would
a brief
without
are
Lyons
investigate
of
to warrant an articulable
of criminal
detention
and the driver to
activity does not mean that the various factors
further.
police,
together,
wholly
noticed
the
taken
are
Immigration
irrelevant;
6.
unsuspicious
v. Del
Service
Naturalization
cannot be
1763,
1758,
210,
gado,
S.Ct.
466 U.S.
"entirely
flight,
called
the
innocent.” Without
(1984);
L.Ed.2d 247
see United
an
States v. Menden
these
consistent with
inno-
factors
hall,
1877,
1870,
explanation
100 S.Ct.
cent or a criminal
and thus do not
justifi-
(plurality opinion) (“particu
provide
objective
L.Ed.2d 497
level of
"some minimal
INS,
objective justification”).
larized and
for
cation"
a seizure.
104 S.Ct.
1763.
flight, the
of
But with the
inference
criminal
circumstances,
activity, based
all the
be-
on
dissenting colleague
respon-
7. Our
characterizes
comes reasonable.
innocent,"
"entirely
post
dent's behavior as
600,
perceives
respon-
thus
that we
128,
421,
U.S.
S.Ct.
ground
passen-
dent’s
ger
seizure on the
that a
only
in a car
be seized if the
basis for
police suspicion
is
on foot
the driver’s
police
post
(D.C.
attempt
when the
him. See
2. Johnson v. United
facts apprehension basis for his clearly is recovered. Johnson such an (Terry). case, expectation tangible in this since person and evidence was seized from his comedy here of er- We are met with a bag. reasoning majority’s his The has the I, majority found rors. In Johnson extending require effect Rakas illegally seized John- expectation privacy only place car in companion, the driver son’s recovered, from which evidence but Johnson was when the which seated suspi- in certain of “articulable elements illegally arrived. the driver had been Since i.e., events, upon by or facts—relied seized, cion”— police’s his reaction to the actions— police in their to make an decision “flight” his termed a “fruit” of —was investigative stop of the defendant.4 “flight” as a Describing seizure. “fruit,” however, leads to the inexorable majority strange has this reached “sup- it conclusion that as “fruit” can be building strange on a result because it is (even pressed” tangible it is though premise: that the seizure of the driver is government evidence that seeks to ad- challenge issue Johnson’s the admis offense, prove mit to substantive but is A long Supreme line of sion of evidence. suspi- establishes, however, mere element precedents which reasonable Court based). faulty reasoning.3 cion is This only that a criminal defendant seizure Now, See, petition rehearing, e.g., Alder may challenge the Rakas own. 171, analysis applied (adding injury): insult to man v. United although (1969); “flight” 22 L.Ed.2d sup- a “fruit” can be person pressed, only the who has an Simmons flies “expectation privacy” 19 L.Ed.2d his own (1968); therefore the driver can “move to Jones v. United suppress” particular “fruit.” court
“flight
(1960).5
surprisingly,
as a fruit”
I
trial
Not
Johnson
(with
findings regarding
the interaction
paved
way
help
has thus
of made no
driver, and
government)
and the
majority’s
conclu-
between
give
weight
Admittedly,
dissenting
to the driver’s
the in-
less
author in
suit:
should
deciding
supplied
assessing
passenger
stant case
vote for the
seize a
cause to
holding
innocent,
majority
I.
entirely
than
whose behavior
*8
assessing
to
the driver who took
seize
cause
operating
majority’s para-
4. Even
the
within
police.
flight
approach
at
of the
the
majority’s
digm, the
irrational result well illus-
infirmity
reasoning pro-
trates the
of its entire
however,
5. Rakas,
princi
does
for this
not stand
may
though
flight
cess:
even
the driver's
that
ple, since
defendants there disavowed
the
(since
may
seize
not
"suppress”
used to
the driver
he
challenge
government’s seizure
the
intention to
may
flight),
flight
his own
that
still
150-51,
persons.
U.S. at
See 439
of their
companion
a
is
be used to seize
whose behavior
J.,
(Powell,
concurring):
at 160
at
id.
S.Ct.
approach
A common sense
otherwise innocent.
to the
J.,
(White,
dissenting).
n. 5
at 439
n.
99 S.Ct.
majority’s
problem
the
first
under even
principles
exactly
opposite
the
re-
should reach
attempt
others,
did
even
to
and a
Johnson
assert
narcotics user. The
ap-
the
illegal
pellant Lyons
driver,
any stage
the driver’s seizure was
at
and the
were not
known to
proceedings,
police
the officers.
of the
either
the trial court
observed
Spriggs getting out
the
looking
car and
appeal.
question
on
There
no
is
“suspicious”
manner. He
about
en-
brought against
an
been
action
the
building
a
tered
as the driver circled
driver,
the
challenged
he
his own
could have
block, and then
to the
returned
car. As the
seizure,
and if
seizure was found to be
ear,
pulled up alongside
they
the
initio,
support
without
ab
of course his
placing
envelope
Spriggs
observed
an
into
police
flight
instigation
could not be
They
his shoe.
Spriggs
arrested
and dis-
to
it
used
after the fact.
In this
person. They
covered narcotics on his
however,
question
proceeding,
the
of the
passengers
charged
seized the other
and
seizure
the
is irrelevant.
Lyons
observing
after
needle marks on his
Lyons
arm. We held that the seizure of
II.
illegal
“Lyons’ only
since
connection
question
The sole
for us to determine on
they
Spriggs
was that
were
occu-
both
appeal
specif-
this
is therefore whether the
pants of the same car” and that “mere
police
ic facts known to the
were sufficient
suspicion”
anwas
insufficient basis to im-
stop
ground
to
of Johnson. The court
pute Spriggs’
Lyons.
to
conduct
Id. at
I,
today
held
majority
Johnson
and the
Although in Lyons
companion’s
712.6
the
conclusion,
the
police
affirms
that the
offi-
independently suspicious,
conduct was
legitimate
detaining
cers had no
basis for
provoked by the
police
arrival
as in
searching
and
the driver’s
before
case,
this
the court
conduct
held
flight.
implication
flowing from the
imputed Lyons
though
could not be
to
even
now
by
majority,
result
reached
Spriggs
Lyons
occupants
were
“imputable”
one man’s
to another
Here,
same car.
the driver was unknown
innocent,
man whose
entirely
behavior is
suspicious
engaged
no
legitimacy upon
untenable.
It confers
an
activity
up
nearby
than his
guilt
entirely by
inference of
asso-
created
police instigation.
A
house
fortiori there
ciation,
repugnant principle
that until to-
impute
ambiguous
basis here
day
rejected
has
by
been
this court. For
Indeed,
conduct to
we have nev-
Johnson.
example,
Lyons v. United
er held that
individual
be seized
(D.C.1966),
we
faced
were
solely
companion
of a
on the
similar
were
scenario:
on
approach of
police,
and the cases
they
for housebreakings,
lookout
ob-
majority
proposition
cited
a stopped
containing
served
three male
inapposite
since in each of those cases
passengers.
passengers,
engaged
One of
sus-
himself
Spriggs,
activity.7
picious
was known to the
as a thief
Sibron New
See also
case,
ran,
Although Lyons
probable
questioning,
companion
was a
cause
applying
events,
its
sequence
facts would not
that based
this entire
question
lead to a
result
different
justified
seizing
the officer was
the defend
impute
legitimately
whether the
could
A.2d 20
ant.
Franklin
United
Spriggs’
Lyons
Lyons
stop
then
conduct
(D.C.1978),
(D.C.1978) (on rehearing,
601
Johnson,
1889, 1902,
imputed
flight
to
York, 392 U.S.
40, 62,
conduct could be
does not
(fact
police
alone
(1968)
at the arrival
that defendant
a reasonable basis
provide
police
with
talking
a number of
to
was observed
stop.
period
of a
for a
addicts over a
known narcotics
seizure);
justify
is insufficient to
objective
few hours
level of
purely
a
Viewed from
U.S.App.D.C.
137
Hinton v. United
observation,
running
a short
the act of
876,
(1969) (“[cjourts
388, 391, 424 F.2d
879
building
is an
nearby
a
...
distance to
by associa-
countenanced arrest
have never
one
universal
in character that
action so
Larson,
638,
v.
tion”);
Wash.2d
State
93
motivating
only speculate as to its
can
771,
(1980)
642,
(illegal act
P.2d
774
running
611
when the act of
source. Even
justify stop
passen-
to
driver insufficient
by an effort
to avoid contact
motivated
ger).
police, it still does not constitute
with the
fact
type
specific
and articulable
inescapable that
The conclusion is
justi-
constitutionally sufficient to
that is
grounded
Johnson was
seizure of
fy
stop.
The driver’s act in run-
facts.
articulable
Thomas, 660 P.2d
1272,
police People
v.
1275
nearby building
ning up to a
as
banc).
(Col.1983) (en
Every court to consid-
any
approached, without
other circumstanc-
may
has held that actions
give
police
cause to believe that a
er the issue
es to
police,
interpreted as avoidance of
been or was about to be commit-
crime had
more,
justify
serve to
ted,
justify the without
cannot
simply
insufficient
(cid:127)
Although there is no
investigatory stop.8
of Johnson. Even if the driver’s
seizure
when,
running
morning,
sufficiently
"particularly
defendant’s
unusual hour to
flight
reported
justify
questioning.
the scene of a
crime.
is not
flight
police
positively relate the
must
crime.");
of a
Commonwealth
473, 479,
commission
Aldridge,
People
8. See
35 Cal.3d
198
1019,
211, 212-15,
Barnett,
A.2d
541,
240,
484 Pa.
398
538,
(1984)
Cal.Rptr.
674 P.2d
243
(1979) (flight
even
alone
insufficient
("The departure of defendant and others from
investigatory stop); Common
a limited
[by
police]
cannot
an imminent
intrusion
914,
320, 324,
Jeffries,
A.2d
wealth v.
454 Pa.
311
illegal
bootstrap an
detention into one that is
(1973) (fact
quickened
721,
State,
that defendant
917
legal.”); McClain v.
408 So.2d
722
(where
pace
officer and started
when he saw
(Fla.App.)
tak
defendant's "behavior ...
began
him "is not
when officer
to chase
implications, indicated
run
en for its most insidious
enough
justify
... ab
a seizure under
police,”
con
that he wanted to avoid
give
justify
which would
rise
stop), app. dism’d
some other factor
duct is insufficient to
sent
conduct”);
mem.,
(Fla.1982);
Common
criminal
Kearse v.
areas, see (“high neighborhood crime” factor
at 2641 suspicion); to reasonable give
cannot rise States, v.
see also Curtis United
v. United
(D.C.1975);
Jones
supra,
damage chipped paint were accorded
significance in the of “reason- assessment quite suspicion,”
able the automobiles sev- Washingtonians including
number of — put eral members of this court —would Finally, sugges-
their owners at risk. likely criminality inferred
tion that can be presence together men of three
hardly deserves comment. None of these individually any legal signifi-
factors has statistics, something addition, that is more than [ ] crime in Robinson v. United 458,, (D.C.1971), and interro- required detention we held that the A.2d unjustified searching appellant, Tyler who gation.” And ignored (D.C.1973), down the street at 2:00 a.m. and walked that a warrant- we held "wait,” request "the because unjustified when it was less search crime, complaint report had no of a sitting appellant solely fact that on the did not had never seen before and a.m., despite alley parked at 3:30 engage in observe him unlawful conduct.” engaged in companion appellant or a fact that although presence be that “[i]t held that as the officers furtive acts appeared to be what city early in the the streets of this at an hour approached. conduct, given present morning suspicious