Before Farrell and Ruiz, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Associate Judge Farrell.
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Appeal from the Superior Court of the District of Columbia
(Hon. Stephen F. Eilperin, Trial Judge)
Dissenting opinion by Senior Judge Kern
Farrell, Associate Judge: Found guilty by a jury of distributing cocaine, appellant contends primarily that the trial court erred in refusing to suppress his on-scene identification and money removed from his possession as the fruits of an unjustified warrantless entry by the police into the house in which they seized him. In its initial brief on appeal, the government argued only that appellant had no "standing" to challenge the search and seizure because he had no protectible Fourth Amendment interest in the dwelling, which belonged to someone else. At oral argument the court pressed the government on whether, assuming we disagreed with it on that point, it was defending the warrantless entry and resulting obtention of evidence on the merits - in particular, on the ground that exigent circumstances justified the warrantless entry. In a post-argument letter, the government adhered to its decision to defend the search and seizure solely on grounds that appellant could not invoke the Fourth Amendment's protections. Citing Rose v. United States, 629 A.2d 526 (D.C. 1993), the government asked us not to attempt to "decide the case on the basis of issues and arguments [it] advisedly [had] chosen not to raise in support of the judgment." See id. at 538 (declining to consider merits of search and seizure where, as here, the court "confront[ed] a deliberate decision by the government, not an inadvertent failure, to argue [only lack of standing]").
On the authority of Rose, we defer to the government's litigating position and do not reach the constitutional validity of the warrantless entry. We do so in part because, as in Rose, "this is not a matter we could easily resolve [in that] the answer is `beyond serious debate.'" Id. at 537 (citation omitted). *fn1 Instead, we confine ourselves to deciding whether, as the government contends, appellant had no expectation of privacy in the house entered and searched. *fn2 Although the record is not well-developed on this issue, we conclude from the Supreme Court's most recent teaching on the subject in Minnesota v. Carter, 119 S. Ct. 469 (1998), that the government's position must be rejected. We therefore reverse the judgment and remand for further proceedings. *fn3
The facts adduced at the suppression hearing were essentially as follows. An undercover officer bought two bags of cocaine from appellant in the 900 block of I Street, N.E. Watched by another officer, appellant then walked east to a row house at 1010 I Street, N.E. and entered it. Less than five minutes later, an arrest team that had been summoned knocked on the door of the house and, when the door was opened, entered immediately. They saw appellant standing "back toward the kitchen area." They seized him and took him outside, where he was identified as the seller of the drugs. A search of him yielded unmarked currency. No one gave consent to the officers' entry into the home, and, as pointed out, the government does not argue that "hot pursuit," exigent circumstances generally, or any other doctrine rendered the warrantless entry lawful.
Appellant had no ownership interest in the residence and did not live there. His lone witness at the suppression hearing, Earley Green, Jr., did live there, was present at the time of the entry by the police, and had known appellant for "about ten years." Asked whether appellant "was . . . a frequent visitor in your house," he replied, "Like family." On the occasion in question appellant was there "by [Green's] invitation."
The government contends that these facts are much too sketchy to establish appellant's "capacity to claim the protection of the Fourth Amendment," which required both that he had "a subjective expectation of privacy" in the invaded place and that this expectation was "legitimate," in that it is "one that society is prepared to recognize as reasonable." Minnesota v. Olson, 495 U.S. 91, 95-96 (1990) (citation and internal quotation marks omitted). The government points out that there was no evidence that appellant ever spent a night at 1010 I Street, that he and Green were relatives, that he had a key to the residence or kept personal items there, that he had permission to come and go at his leisure, or that he would remain there for any length of time when he visited - in short, there was no showing of factors of the kind present in our prior decisions recognizing a protected Fourth Amendment interest in the place searched. Compare, e.g., Rose, 629 A.2d at 531-32, with Hill v. United States, 664 A.2d 347, 353 (D.C. 1995), and Prophet v. United States, 602 A.2d 1087, 1089, 1091 (D.C. 1992). See also Olsen, 495 U.S. at 98-99 (holding that an overnight guest "has a legitimate expectation of privacy in his host's home" because "[s]taying overnight in another's home is a longstanding social custom that serves functions recognized as valuable by society"). The difficulty with the government's - and our Dissenting colleague's -position is that it does not come to grips with the Supreme Court's most recent analysis of how "a defendant is able to show the violation of his (and not someone else's) Fourth Amendment rights." Carter, 119 S. Ct. at 472. We first summarize the holding of Carter, and then apply it to this case.
On its facts, Carter presented the issue of whether a person present in another's home for a "purely commercial . . . transaction," for only a "relatively short period of time," and having no "previous relationship with" the householder, could claim the Fourth Amendment's protections. Id. at 473-74. A majority of five Justices answered this question in the negative. A four-Justice minority, by contrast, would have held that, "[t]hrough the host's invitation, the guest gains a reasonable expectation of privacy in the home" without regard to "the duration of [the] stay," its "purpose," or the "[degree of] acceptance into the household." Id. at 482 (Ginsburg, J., Dissenting) (internal quotation marks omitted). Of key importance is that the majority opinion depended on the concurrence of Justice Kennedy, who joined the opinion expressly because "its reasoning" was "consistent with [his] view that almost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host's home." Id. at 478 (Kennedy, J., Concurring) (emphasis added).
Differing from the Dissent in this respect, Justice Kennedy stated that "[t]he homeowner's right to privacy is not at issue in this case." Id. at 479. *fn4 Rather, he asserted, unless Rakas v. Illinois, 439 U.S. 128, 143 (1978), was to be overruled in its rejection of the notion that "anyone legitimately on the premises" shares the owner's legitimate expectation of privacy, the defendants had to establish their independent privacy right in the form of "a meaningful connection to [the homeowner's] apartment." Carter, 119 S. Ct. at 479. Nevertheless, Justice Kennedy agreed with the Dissent "that reasonable expectations of the owner are shared, to some extent, by the guest," and in particular he was of the view that "most, if not all, social guests legitimately expect that, in accordance with social custom, the homeowner will exercise her discretion to include or exclude others for the guests' benefit." Id. That analysis "suggest[ed] that, as a general rule, social guests will have an expectation of privacy in their host's home." Id. (emphasis added). According to Justice Kennedy, however, the respondent-defendants in Carter, though invited into the apartment, had "established no meaningful tie or connection to the owner [Thompson], the owner's home, or the owner's expectation of privacy," id.:
[R]espondents have established nothing more than a fleeting and insubstantial connection with Thompson's home. For all that appears in the record, respondents used Thompson's house simply as a convenient processing station, their purpose involving nothing more than the mechanical act of chopping and packing a substance [i.e., cocaine] for distribution. There is no suggestion that respondents engaged in confidential communications with Thompson about their transaction. Respondents had not been to Thompson's apartment before, and they left it even before their arrest. The Minnesota Supreme Court, which overturned respondents' convictions, acknowledged that respondents could not be fairly characterized as Thompson's "guests." 569 N.W.2d 169, 175-176 (1997); see also 545 N.W.2d 695, 698 (Minn. Ct. App. 1996) (noting that Carter's only evidence - that he was there to package cocaine - was inconsistent with his claim that "he was predominantly a social guest" in Thompson's apartment). Id. (Kennedy, J., Concurring).
In light of this analysis, the Dissenting Justices thought "it noteworthy that five Members of the Court would place under the Fourth Amendment's shield, at least, `almost all social guests.'" Id. at 483 n.2 (Ginsburg, J., Dissenting) (quoting majority opinion).
The government does not argue that appellant entered 1010 I Street for a "purely commercial" purpose such as depositing the proceeds of the drug sale or resupplying himself. Even though he headed there directly after the sale, no evidence supported either supposition. Instead the government seems to argue that, as a case emphasizing the commercial reason for the defendants' presence in the apartment, Carter has little to say about what showing of a privacy interest must be made by a guest who does not enjoy the status of overnight guest as in Minnesota v. Olson, supra. The suggestion, in other words, is that Carter leaves undisturbed our prior decisions requiring what might be termed proof of Olson-equivalent status - facts such as possession of a key, a demonstrated pattern of coming and going, keeping clothes on the premises, and the like - before a guest may acquire the protected privacy interest of the owner.
We do not regard ourselves free to read Carter in this limited a fashion. First, although the Carter majority viewed the overnight guest in Olson "as typifying those who may claim the protection of the Fourth Amendment," 119 S. Ct. at 474, it plainly did not imply that only that "degree of acceptance into the household" would suffice, id. at 473; otherwise the Court would have had no need to acknowledge that the defendants - for whom the apartment "was . . . simply a place to do business" - occupied a middle status somewhere "between" that of the Olson guest and an invitee "simply permitted on the premises" (Rakas), though "closer to" the latter. Id. at 474. More importantly, the opinion of a fifth Justice whose vote was decisive obviously must be taken seriously. Justice Kennedy, as we have said, joined the majority only because its opinion was consistent with his "view that almost all social guests have a legitimate expectation of privacy." Id. at 478. If anything, he appeared to be of the view that only someone approximating the non-guest status the state Supreme Court had assigned the Carter defendants - who had "nothing more than a fleeting and insubstantial connection" to the home, id. at 479 - could be denied Fourth Amendment protection. Nothing in Justice Kennedy's analysis suggests he would require an Olson-equivalent showing before a defendant may assert Fourth Amendment rights in a dwelling into which he has been invited. Our attempt to read the "tea leaves" of how the Supreme Court would decide this case must be guided by that recognition.
The record in this case is thin regarding appellant's connection to the Green home (or the home where Green "lived"), but it is enough to show that he was more than one "simply permitted on the premises." Id. at 474. Green invited him in on this occasion as a person he had known for some ten years. Asked whether appellant was "a frequent visitor in your house," Green answered, "Like family." Hence it cannot be said that, as in Carter, appellant had no "previous relationship with [the householder], id. at 473, or "had not been to [Green's] apartment before." Id. at 479 (Kennedy, J., Concurring). Indeed, the commonsense understanding of "[l]ike family" would be that he frequented the house with something like the regularity of a family member, and so had achieved "a degree of acceptance into the household." Id. at 473. And, as explained, the fact that he entered the house right after selling drugs allows the conjecture of a "commercial" link between the acts, but nothing more.
Following the common thread in the various opinions in Carter that at least social guests of the host generally have a legitimate expectation of privacy, we hold that appellant met his burden of showing that he had a protectible interest in the house the police entered in order to seize him. As the government concedes that this issue is dispositive, the evidence obtained as a result of the entry should have been suppressed.
It remains only for us to say that this holding does not "gut law enforcement efforts in stemming the trafficking of illegal drugs that are upon this record prudent police work." Post, at ____ (dissenting opinion). Judge Kern does not take issue with our deference, under Rose, supra, to the government's refusal to argue hot pursuit, exigent circumstances, the doctrine of New York v. Harris, supra note 1, or any other basis on the merits for upholding the search and seizure. Nor does he himself make any such argument. If in fact this were a case of "fleeing felons claiming `sanctuary'," post, at ___ - which ...