Appeal from the Superior Court of the District of Columbia; Hon. Truman A. Morrison, III, Trial Judge.
Before Rogers, Chief Judge, and Schwelb and Farrell, Associate Judges.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge:
A jury found appellant guilty of distributing cocaine. D.C. Code § 33-541 (a)(1) (1988). On appeal he contends that the trial court erred in not suppressing evidence of a showup identification made outside his rooming house immediately after police entered the house without a warrant and seized him in a common hallway. The government concedes that exigent circumstances did not justify the warrantless entry and seizure but maintains that appellant lacked a legitimate expectation of privacy in the invaded areas of his rooming house, and thus may not, challenge the identification evidence on Fourth Amendment grounds. The government further argues that the Supreme Court's recent decision in New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990), renders the post-seizure identification evidence admissible in any event because the evidence was not the product of the warrantless entry and seizure. Because we are unpersuaded by either of these arguments, we reverse appellant's conviction.
Shortly before 8:00 p.m. on June 22, 1989, Officer Walton of the Metropolitan Police Department drove to the 4600 block of Georgia Avenue, N.W., to attempt an undercover narcotics purchase. After parking his vehicle, Walton walked north to Crittenden Street. There he met an individual he later identified as appellant and asked about making a drug purchase. When appellant responded, "Twenty?", a street term for twenty dollars worth of crack cocaine, Officer Walton replied that he might want "three," meaning three twenty dollar pieces of crack.
Appellant led Walton south through an alley to the rear of a row house that faced Georgia Avenue. There appellant told Benjamin Brown that Walton wanted a "sixty." Brown relayed this information to another individual, Rodney Pryor, who stood behind a locked, steel-barred security door in the basement of the row house. Officer Walton saw Pryor pass two plastic wraps through the bars to Brown, and heard him shout to appellant, "Didn't I tell you not to bring the customers up to the door." Appellant then led Walton from the yard to the alley and accepted sixty dollars from him in pre-recorded bills. Appellant passed this money to Brown, who had come to the back of the yard, and Brown gave appellant three plastic wraps containing a white rock substance, which appellant handed to Walton. Walton then walked north up the alley toward Crittenden Street, counting the houses as he went. After entering Crittenden, he made his way back to Georgia Avenue and by recounting the houses established that the transaction had occurred in the rear of house number 4621. On reaching his vehicle, Walton immediately called an arrest team that had been stationed at various locations in the area.
In his radio lookout, Walton informed the arrest team that he had three individuals for them. He described appellant as a black male wearing a brown suede-like jacket and gray khaki pants. His description of the other two suspects included the fact that one who spoke with a Jamaican accent could be found in the basement of 4621 Georgia Avenue. *fn1
Sergeant Thomas McGuire and other members of the arrest team drove directly to the front of the house at 4621 Georgia Avenue and entered unannounced through the front door, which was wide open. McGuire proceeded immediately through a hallway to a kitchen area in the back of the house. There he found a stairway, descended it, and, along with other officers, apprehended appellant in the basement corridor. McGuire escorted appellant and Brown, who had been captured on the first floor, to the street sidewalk in front of the house. Officer Walton drove by in his vehicle and positively identified appellant and Brown as participants in the drug transaction. This occurred approximately five minutes after the drug sale. Three minutes later, Walton positively identified the third participant, who had been apprehended elsewhere in the neighborhood. The entire police operation, from the moment Walton first parked on Georgia Avenue until the identification of Pryor, took approximately fifteen minutes.
Before trial, appellant moved to suppress evidence of the showup identification as tainted fruit of the warrantless entry into the rooming house. The government argued first that appellant lacked a reasonable expectation of privacy in the common areas the police entered and searched. The trial Judge, relying on this court's previous decision in United States v. Booth, 455 A.2d 1351 (D.C. 1983), reached the "tentative view" that appellant had a sufficient privacy interest to establish a Fourth Amendment violation. *fn2 The government argued next that exigent circumstances excused the warrantless entry. The Judge found it unnecessary to reach this claim because, in his view, the Supreme Court's decision in New York v. Harris, supra, was "completely dispositive of the analysis" in this case. Harris held that, in the circumstances of that case, a station house confession obtained after a probable cause arrest in the home was admissible even though the warrantless home arrest violated the rule of Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639 , 100 S. Ct. 1371 (1980). Harris, 110 S. Ct. at 1644-45.
The government begins by renewing its argument that appellant did not demonstrate a sufficient expectation of privacy in the area in which he was seized to claim the protections of the Fourth Amendment. We review the trial court's "tentative" contrary Conclusion de novo. See Lewis v. United States, 594 A.2d 542, 543 n.3 (D.C. 1991); Martin v. United States, 567 A.2d 896, 902 n.16 (D.C. 1989). The government correctly points out that appellant, as the person claiming the protections of the Fourth Amendment, had the burden of proving "that he had a legitimate expectation of privacy" in the common areas of the rooming house. Rawlings v. Kentucky, 448 U.S. 98, 104-05, 65 L. Ed. 2d 633 , 100 S. Ct. 2556 (1980); Lewis v. United States, 594 A.2d at 545; United States v. Booth, 455 A.2d at 1353. Nevertheless, we conclude -- with the trial Judge -- that this case cannot be distinguished meaningfully from Booth, which rejected a similar claim that a tenant in a rooming house had not established a reasonable expectation of privacy in a common hallway.
In Booth, the court concluded that the defendant residents of a rooming house "had a legitimate expectation of privacy in the front hallway of the house they shared, which was not obviously a rooming house open to the general public." Id. at 1354. The evidence shows that 4621 Georgia Avenue was not obviously a rooming house open to the public. It is true that on this occasion the front door was open wide, but the government rightly does not attach decisive significance to that fact. Officer Walton's lookout had not identified the building as a rooming house, nor was there evidence that anyone else had reached that Conclusion before the officers made their entry. At trial Walton testified that the 4600 block of Georgia Avenue had private homes, not apartment buildings, situated on it. At the suppression hearing Sergeant McGuire explained that "once inside the house, it turned out to be a rooming house" (emphasis added), and at trial he asserted without reference to time or place only that he "was told" that the address was a rooming house. Although McGuire also stated at the suppression hearing that he had had no difficulty entering the dwelling in the past (thus raising the inference that the occupants cared little about their privacy), his testimony leaves uncertain whether the police ever entered the house before the raid on June 22, 1989. *fn3
Moreover, even if the police knew the residence was a rooming house, Booth makes clear that, without more, that is not enough to support the inference that public access was freely permitted and that the residents held no "privacy interests [in the common areas] worthy of society's protection." Id. at 1353. As in Booth, the government has not challenged appellant's assertion that he paid rent and resided in the house, and that he had "access to and use of the area" through which the police proceeded before seizing him in the basement. Id. Also, proof of appellant's "authority to exclude others from the area entered and searched" is at least as strong as the evidence pointed to by the court in Booth. Id. Appellant testified that sometimes the front door was left open -- as on this late June occasion -- and at other times it was locked. We cannot infer merely from this that the tenants took no "reasonable precautions in attempting to maintain privacy." Id. Of particular importance to the trial Judge was that the police passed through the front hallway and "through somebody's kitchen to get to the basement in private home converted to a rooming house." Appellant testified that the tenants shared the ...