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08/05/93 JOHN L. ROSE v. UNITED STATES

August 5, 1993

JOHN L. ROSE, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Warren R. King, Motions Judge and Trial Judge)

Before Ferren, Schwelb, and Wagner, Associate Judges. Opinion for the Court by Associate Judge Ferren. Dissenting opinion by Associate Judge Wagner.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge : After his convictions for distribution of cocaine and possession with intent to distribute, D.C. Code § 33-541 (a) (1) (1988 Repl.), appellant seeks review of the trial court's denial of his motion to suppress tangible evidence and an out-of-court identification. He argues that the trial court should have excluded this evidence because the police obtained it as a result of a warrantless entry into his aunt and uncle's apartment. The government replies that appellant lacks standing to object to the warrantless entry. We conclude that the record requires us to hold that appellant has standing. It follows on this record -- as the government concedes -- that the evidence must be suppressed. *fn1

I.

According to the government's evidence, *fn2 the circumstances of appellant's arrest were as follows. At about 6:00 p.m. on May 1, 1990, Officer Rene Davis of the Metropolitan Police Department, working undercover, saw appellant come out of an apartment building and walk toward another at 3253 23rd Street, S.E. *fn3 Officer Davis signaled to appellant that she wished to purchase rock cocaine. Appellant motioned to her to approach. Officer Davis did so and asked appellant if she could buy two $20 pieces of rock cocaine. Officer Davis and appellant then went into the 23rd Street apartment building where, on the landing between the second and third floors, the officer gave appellant $40 in prerecorded bills in exchange for two plastic bags of rock substances. While this transaction was taking place, a door opened to apartment 24 on the second floor, and a woman asked appellant if he wanted her to leave the door unlocked. He said no. Officer Davis then asked appellant whether he would still be there if she came back in five minutes, to which appellant replied that he would either be "out here" or in the apartment where the woman was. He also told Officer Davis that, because he had a key, he did not know why the woman had asked him if he wanted her to leave the door unlocked. Officer Davis then returned to her car and radioed to an arrest team, reporting that she had just made a drug purchase and describing the seller *fn4 and where he could be found.

Two members of the arrest team, Officer Calvin Jones and Sergeant Joseph Zovak, then entered the apartment building and, not seeing the subject in the hallway, knocked at the apartment indicated by Officer Davis. According to Officer Jones, a woman *fn5 answered the door, and Sergeant Zovak announced that they were police officers looking for a suspect in relation to a narcotics offense. There is no indication in the record that the officers ever obtained or displayed a warrant either to arrest appellant or to search apartment 24. Officer Jones testified that the woman opened the door, stepped back, and said "Okay," admitting the officers into the apartment. As the officers crossed the threshold, they saw appellant walking into the living room. They approached appellant, detained him, and patted him down, finding nothing. They then escorted him outside the apartment to the street, where Officer Davis, riding by, identified appellant as the person who had sold her the cocaine. Appellant was placed under arrest, and Officer Green, the transport officer, searched him, finding a ziplock bag containing a piece of rock cocaine in appellant's pants pocket.

Appellant did not testify at trial, but at the suppression hearing he gave the following account. After returning home from work he had gone to the store. On his way back from the store he passed by his aunt's apartment at 3253 23rd Street on the 22nd Street side; she was in the window and asked him for a cigarette. Appellant went up to her apartment and began talking with his aunt and uncle there. Appellant stated that he did not make it "a habit" to go over to his aunt's, but he did "check on" his uncle and aunt "once or twice a week." A minute or thirty seconds after he arrived at the apartment there was a knock on the door. Appellant testified that he opened the door and that police officers appeared with handguns and shotguns. The officers did not display any warrant, nor did they request permission to enter the apartment, although they did identify themselves as police. They pushed their way inside the apartment, and one man grabbed appellant by his shirt, shoved him up against a wall, proceeded to search appellant's pockets and socks, and then opened and dropped appellant's pants. One of the officers told appellant he was not under arrest but asked him to walk outside. The officer then escorted appellant outside the apartment building while holding onto him by the back of his pants.

Appellant's uncle, Samuel Rose, testified both at the suppression hearing and at trial. He said that he lives with his sister Betty Jean Mack, appellant's aunt, at 3253 23rd Street, S.E. He added that appellant visited the apartment every other day, or once or twice a week. Rose also testified that he visited appellant at the home of appellant's mother, where appellant lived. Rose confirmed that appellant had opened the door when there was a knock and that the police officers then rushed in, pinned appellant against the wall, and searched him, dropping appellant's trousers.

The trial court denied appellant's suppression motion. The court credited appellant's testimony that appellant, not a woman (as Officer Jones had testified), had answered the door when the police knocked. The court did not make any finding as to whether appellant or anyone else had consented to the officers' entry into the apartment. The court did find, however, that the "combination of description [given by Officer Davis] as well as the physical location more than enough to establish probable cause." The court also found that there were exigent circumstances, not in the sense that there was imminent danger, but insofar as the police needed to prevent destruction of evidence and make an identification, because "the police don't know who this guy is." The court ruled that under these circumstances the police, upon seeing appellant across the threshold, had probable cause or at least reasonable suspicion that justified taking appellant into custody. Moreover, the court "seriously questioned the [appellant's] having any standing about being hauled out of his aunt's home under those circumstances," although the court did not make a formal finding as to whether appellant had standing to object to the warrantless entry. Finally, the court concluded that even if there had been an unlawful arrest, the subsequent identification procedure was not tainted because the undercover officer had had plenty of opportunity to observe appellant.

II.

A.

We note at the outset that on appeal the government has abandoned any claim that the detention and search of appellant in his aunt and uncle's home was justified by exigent circumstances, as the trial court ruled. Nor has the government renewed on appeal its claim, which the trial court did not address, that everyone concerned had consented to the warrantless entry. *fn6 Furthermore, the government acknowledged at oral argument that if appellant had standing to challenge the officers' warrantless -- and thus illegal *fn7 -- entry, then the subsequent seizure and ride-by identification of appellant, as well as the plastic bag of cocaine found upon appellant, would be tainted by the illegality of the entry and thus would have to be suppressed. *fn8 The government, therefore, has chosen to rest its argument in support of the trial court's ruling solely on the proposition that appellant lacked standing to object to the officers' warrantless entry. *fn9

As we noted above, the trial court did not make factual findings or explicitly rule on the issue of appellant's standing. The trial court's failure to consider appellant's standing in more detail, however, may have been due, at least in part, to the government's failure to contest standing at the outset. Although appellant, in his motion to suppress, alleged that he had "standing to challenge the legality of the entry," the government's opposition did not contest standing. Indeed, the government did not even mention standing until the prosecutor did so briefly in oral argument at the end of the suppression hearing. Defense counsel at that point indicated she had understood the government was conceding the issue -- an understanding that may have caused counsel to fail to present additional evidence.

The question, then, is whether we can rule on the standing issue on this record. In principle, of course, the trial court -- not the appellate court -- finds facts. But this court may rule on the standing issue as a matter of law, even if the trial court has not made essential findings of fact, if the evidence of standing is sufficient and uncontroverted. See Martin v. United States, 567 A.2d 896, 902 (D.C. 1989), appeal after remand, 605 A.2d 934 (D.C.), cert. denied, 113 S. Ct. 632 (1992). That is the case here. Before looking at the evidence, however, it is necessary to inform the analysis by reference to the applicable law.

B.

Standing to object to a search or seizure as a violation of constitutional rights "depends on whether the person claiming the protection of the Fourth Amendment 'has a legitimate expectation of privacy in the invaded place.'" Lewis v. United States, 594 A.2d 542, 544 (D.C. 1991) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978)), cert. denied, 112 S. Ct. 1225 (1992). "'A subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable.'" Id. (quoting Minnesota v. Olson, 495 U.S. 91, 95-96, 109 L. Ed. 2d 85, 110 S. Ct. 1684 (1990), omitting other citations and internal quotation marks). Such an expectation need not be limited strictly to the confines of a person's home, temporary or otherwise, in order to be reasonable. See Olson, 495 U.S. at 96 n.5.

In Martin, 567 A.2d at 902-03, we concluded that a part-time resident of his grandparents' home had a protected privacy interest in that home. More recently, the Supreme Court held in Olson that an overnight guest had a legitimate expectation of privacy in the premises, sufficient to give him standing to challenge a warrantless entry and arrest. We did not intend our ruling in Martin, nor do we understand the Supreme Court's holding in Olson, to mean that overnight guest status, at the very least, is a sine qua non of standing to challenge a search or seizure in a residence other than one's own home. It remains true, of course, that in order to establish standing to challenge a search or seizure, a visitor in another's home bears the burden of showing that the visitor had a reasonable expectation of privacy in that home. See Prophet v. United States, 602 A.2d 1087, 1091 (D.C. 1992). But being an overnight guest is not the sole means by which a guest may satisfy that burden. *fn10 In this case, therefore, we cannot say as a matter of law that appellant lacked standing to object to the officers' warrantless entry simply because he never claimed that he had been an overnight guest in his aunt and uncle's apartment.

There is other evidence in the record sufficient to establish that appellant had a reasonable expectation of privacy in the premises. First, it is uncontested that this apartment was the home of appellant's close relatives, his aunt and uncle. Second, appellant testified, and his uncle confirmed, that appellant regularly visited his aunt and uncle -- "once or twice a week." This, again, is uncontested. Third, the government sponsored testimony by Officer Davis, both at the suppression hearing and at trial, that appellant said he had a key to the apartment. *fn11 Neither at trial nor at the suppression hearing did the government attempt to negate or qualify that statement through further questioning of Officer Davis, appellant, or appellant's uncle. We recognize, of course, that the statement is hearsay, but since it was admitted in evidence without objection or qualification by the government, a court may consider it and accord it full probative value. *fn12 Given the facts that the government sponsored this testimony twice, and that there is no contrary evidence, we conclude that the only reasonable inference to be drawn from this evidence is that appellant indeed had a key to the apartment.

Furthermore, the fact that the apartment belonged to appellant's close relatives, coupled with the facts that he was a regular visitor and had a key, compel any reasonable finder of fact to infer that appellant had his aunt's and uncle's permission to enter the apartment as he wished, day or night, that he could therefore expect to use it as a place of refuge, and that appellant was in a position to admit or exclude someone from the apartment. *fn13 Appellant's status in his aunt and uncle's home, therefore, was considerably more than that of a casual visitor, distinguishing his situation from that of a mere party guest, as in Lewis, or that of an adolescent visiting the home of one of his friends, as in Prophet. See supra note 10.

Taken together, these three factors -- appellant's close kinship with the owners of the apartment, his regular visits, and his possession of a key -- generate essentially the same expectations the Supreme Court found in the situation of an overnight guest:

That the guest has a host who has ultimate control of the house is not inconsistent with the guest having a legitimate expectation of privacy. The houseguest is there with the permission of his host, who is willing to share his house and his privacy with his guest. It is unlikely that the guest will be confined to a restricted area of the house; and when the host is away . . ., the guest will have a measure of control over the premises. The host may admit or exclude from the house as he prefers, but it is unlikely that he will admit someone who wants to see or meet with the guest over the objection of the guest.

Olson, 495 U.S. at 99. *fn14 We therefore conclude that appellant had a subjective expectation of privacy in the premises that was reasonable and legitimate; consequently, he has standing to move for suppression of the evidence attributable to the warrantless entry.

Given the government's concession that the evidence must be suppressed if appellant has standing to make the motion, see supra note 8 and accompanying text, we must reverse the judgments of conviction and remand for a new trial, if the government so desires, without the tangible and identification evidence attributable to the warrantless entry.

III.

Because our Dissenting colleague reaches the merits issue, we feel obliged to say more fully why we believe ...


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