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06/24/93 THOMAS J. BROWN v. UNITED STATES

June 24, 1993

THOMAS J. BROWN, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Patricia A. Wynn, Trial Judge)

Before Terry, Schwelb, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge : Appellant was convicted of possession of cocaine *fn1 and possession of drug paraphernalia. *fn2 He contends on appeal that the trial court erroneously (1) denied his motion to suppress the cocaine and the crack pipe that were taken from him when he was arrested, (2) rejected his challenge to the composition of the jury, (3) refused to compel the government to produce the chemist who analyzed the drugs, and (4) declined to tell the jury that the court, rather than the jury, would decide the paraphernalia count. We find no merit in any of these contentions and accordingly affirm appellant's convictions.

I

On April 30, 1991, Officer James King of the Metropolitan Police and Agent James Cook of the United States Bureau of Alcohol, Tobacco, and Firearms were on routine patrol in Southeast Washington. At approximately 4:00 a.m. they entered a two-story, four-unit apartment building on Wayne Place, S.E., "to do a routine check of the hallway" because they knew that it was frequented by drug users. The doors to the building had locks on them, but they were not locked, and the rear door was propped open. Officer King entered the building from the rear and walked up one flight of stairs to the first floor. As he started toward the second floor, he saw appellant Brown standing on the stairway landing just a few feet above him. In his right hand Brown was holding what King recognized as a pipe used for smoking crack cocaine. Officer King immediately placed him under arrest for possession of drug paraphernalia. A search incident to the arrest revealed a rock of crack cocaine in Brown's pants pocket, which King seized. The officer testified that Brown was "very disoriented" and had a "very strong odor of alcoholic beverages" about his person.

Brown testified that his home was only a short distance away. Earlier that night, he said, after an argument with his wife, he decided to go out because he "was tired of listening" to her quarreling. After walking for a while, he met several men (whom he did not know) on a street corner and started drinking beer with them. After a period of time, Brown and some of these men moved to the steps of the apartment building, and ultimately to the stairwell inside that building. Brown testified that his companions had left him alone in the stairwell only moments before the police arrived. Brown denied having a crack pipe in his hand when Officer King saw him. He claimed that the pipe was on the steps and that Officer King erroneously concluded that it belonged to him. He also said that the crack he was charged with possessing was seized by the police from the stairwell banister, not from his pants pocket.

II

Brown argues that the trial court erred in denying his motion to suppress the cocaine which the police seized from him upon his arrest. He reasons that the seizure was unlawful because the police entry into the apartment building was made without a warrant and because there were no circumstances that would have justified a warrantless entry. See, e.g., United States v. Salvucci, 448 U.S. 83, 86-87, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980); United States v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). The Supreme Court, however, has made clear that the Fourth Amendment "protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Consequently, a defendant may not "invoke the force of the exclusionary rule . . . merely on the basis that the Government conducted an illegal search or seizure." United States v. Gerena, 662 F. Supp. 1218, 1234 (D. Conn. 1987) (citing Smith v. Maryland, 442 U.S. 735, 740,99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979)). Rather, application of the rule depends on whether "the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978) (citations omitted); accord, e.g., Prophet v. United States, 602 A.2d 1087, 1091 (D.C. 1992); Lewis v. United States, 594 A.2d 542, 544 (D.C. 1991), cert. denied, 112 S. Ct. 1225, 117 L. Ed. 2d 460 (1992); Turner v. Fraternal Order of Police, 500 A.2d 1005, 1007 (D.C. 1985); United States v. Booth, 455 A.2d 1351, 1353 (D.C. 1983); Moore v. United States, 468 A.2d 1342, 1345 (D.C. 1983). Thus, before we may consider whether the police violated the Fourth Amendment by entering the apartment building stairwell at 4:00 a.m. without a warrant, we must determine whether Brown had a legitimate expectation of privacy in that stairwell. We hold that he did not.

The Supreme Court has declared that a person's "subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable." Minnesota v. Olson, 495 U.S. 91, 95-96, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (citations and internal quotation marks omitted); *fn3 see Rakas, supra, 439 U.S. at 144 n.12 ("Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society"). In deciding whether Brown's asserted expectation of privacy in the stairwell was reasonable, we must consider several factors, including whether he had authority to exclude others from the area entered and searched, whether he had access to and use of that area in the past, whether he took reasonable precautions to maintain privacy, how long he had been there, and whether there were other persons there with him. See Prophet, supra, 602 A.2d 1087; Booth, supra, 455 A.2d at 1353; United States v. Burnett, 281 U.S. App. D.C. 428, 432, 890 F.2d 1233, 1237 (1989). *fn4 In addition, since the legitimacy of one's expectations of privacy may be determined in some cases "by reference to concepts of real and personal property law," Rakas, supra, 439 U.S. at 144 n.12, we may also consider whether a defendant owns the premises or at least has a right of possession, alone or shared with others. See Booth, supra, 455 A.2d at 1353. The presence or absence of such property rights, however, is merely one more factor for us to consider, and no single factor is dispositive. See, e.g., Oliver v. United States, 466 U.S. 170, 177, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); Salvucci, supra, 448 U.S. at 91 (property ownership not determinative); Rawling's, supra, 448 U.S. 98 at 105 (same).

Applying all these factors, we readily conclude that Brown had no legitimate expectation of privacy in the stairwell. *fn5 First, he was not a resident of the building, nor was he present at the invitation of any of its tenants. Thus the normal expectations of privacy enjoyed by homeowners (or renters), or even their overnight guests, are not implicated in this case. See Lewis, supra, 594 A.2d at 545-546. Second, Brown admitted that he had never even been in the apartment building before that evening, and thus he had no basis in prior experience from which to derive an expectation of privacy there. Moreover, he was in a part of the building utilized by residents and visitors for ingress and egress to the individual apartments; hence common sense should have told him that he was not in a place which would afford him privacy. See United States v. Anderson, 175 U.S. App. D.C. 75, 79, 533 F.2d 1210, 1214 (1976) (no reasonable expectation of privacy in semi-public common area open to residents, their guests, and delivery persons); cf. California v. Greenwood, 486 U.S. 35, 40, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988) (leaving property where it is "readily accessible to animals, children, scavengers, snoops, and other members of the public" lessens reasonableness of claimed privacy expectation); Katz, supra, 389 U.S. at 351 ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection" (citations omitted)). Third, Brown made no effort to protect his privacy and did not even bother to close the rear door to the building, which had been propped open. Finally, Brown testified that he was accompanied in the building by other individuals who apparently came and went freely, suggesting that Brown possessed a greater interest in companionship than in solitude. See Prophet, supra, 602 A.2d 1087; United States v. Robinson, 225 U.S. App. D.C. 282, 288, 698 F.2d 448, 454 (1983).

Brown relies heavily on this court's decision in McGloin v. United States, 232 A.2d 90 (1967), in which we said that a four-unit apartment house "is not a public or semi-public building." Id. at 91. Seizing on this language, Brown asserts that such a building's "private" status makes his expectation of privacy reasonable. We disagree. The quoted language must be read in light of the fact that McGloin was a prosecution for unlawful entry, in which the defendant had entered the building through a trap door in the roof after having been previously seen on the fire escape. Although we concluded that the evidence was sufficient to prove that loitering on the roof or the fire escape "would be against the will of the owner," we observed that, notwithstanding the building's non-public status, "a member of the public might lawfully enter the lobby or entrance hall for the purpose of making inquiry, making a delivery, or for some like purpose . . . . Id. Furthermore, once a location is acknowledged to be open to the public, "it is pointless to exclude the police alone, for that 'would impede effective law enforcement while adding little to the individual's interest in privacy."' State v. Mooney, 218 Conn. 85, 97, 588 A.2d 145, 153 (citation omitted), cert. denied, 112 S. Ct. 330 (1991); see also United States v. Perkins, 286 F. Supp. 259, 263 (D.D.C. 1968), aff'd, 139 U.S. App. D.C. 179, 432 F.2d 612, cert. denied, 400 U.S. 866, 91 S. Ct. 108, 27 L. Ed. 2d 106 (1970).

Viewing the totality of circumstances, no reasonable person could conclude that Brown had a subjective expectation of privacy in the stairwell. Even assuming that he had such a subjective expectation, we are convinced that it is not one which society is prepared to sustain as objectively reasonable. We therefore hold that Brown had no legitimate expectation of privacy in the apartment stairwell, and that his Fourth Amendment rights were not implicated by the warrantless entry into the building's common area by the police. *fn6

III

Brown also challenges the composition of the jury that heard his case. After the first witness (Officer King) had testified on direct examination, Brown for the first time expressed concern that the jury was not representative of his peers. *fn7 The trial court interpreted Brown's objection as a claim that the jury did not represent a fair cross-section of the community, but found that there was no violation of his Sixth Amendment ...


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